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OF 

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OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


o 


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A 
PRACTICAL  TREATISE 

ON    THE 

SETTLING  OF  EVIDENCE 

FOR 

TRIALS  AT  NISI  PR1US  5 

AND  ON  THE 

Preparing  and  Arranging  the  Necessary  Proofs* 


BY  ISAAC  'ESPIXASSE, 

M> 

Of  GRjrS.IJYJY,  ESQ.,  BARRISTER  JIT  LAW. 


PHILADELPHIA  : 
H,  C.  CAREY  &  I.  LEA— CHESNUT  STREET. 

1822 


GRIGGS  &  DICKINSON,  PRINTERS, 


INTRODUCTION. 


J.  AM  induced  to  offer  the  following  Work  to  the  Pro- 
fession, from  having  often  had  occasion  to  observe,  in  the 
course  of  not  inconsiderable  experience,  the  defective 
manner  in  which  Causes  are  got  up  for  Trial.  This  has 
always  appeared  to  me  to  proceed  from  the  want  of  some 
Treatise,  containing  rules  of  practical  application  as  to  set- 
tling the  Evidence,  and  in  pointing  out  and  arranging  the 
proofs  which  are  required,  in  all  cases  which  occur  at 
Nisi  Prius. 

The  utility  of  such  a  Treatise  will  not  be  questioned, 
when  it  is  considered,  that  it  is  in  vain,  that  an  Action  is 
commenced  upon  grounds  of  Law  the  most  settled  and 
decided,  and  the  Pleadings  framed  with  consummate  ac- 
curacy and  knowledge ;  if,  when  the  Issue  is  made  up, 
the  Evidence  is  found  to  be  defective,  and  the  proofs  at 
the  Trial  unequal  to  the  support  of  it.  Who,  in  practice 
at  the  Bar,  has  not  often,  under  such  circumstances,  ex- 
perienced defeat ;  in  Causes  too,  where  the  verdict  has 
been  lost,  for  want  of  bringing  forward  Evidence  of  easy 
attainment,  the  necessity  of  which  was  only  required  to  be 
known  ?  Where  there  is  an  absence  of  all  legal  Evidence, 
success  cannot  be  expected,  however  well  grounded  the 
Action  may  be  in  principle  :  but  where  such  Evidence  is 
to  be  had,  it  is  just  matter  of  reproach  either  to  the  Pleader 
\vho  had  not  pointed  it  out,  or  to  the  Solicitor,  who,  in 


iv  introduction. 

preparing  the  Cause  for  Trial,  had  not  brought  it  forward 
when  within  his  power  to  do  so,  and  which,  if  it  had  been, 
would  have  incurred  success. 

From  what  causes  this  defect  proceeds,  it  is  not  difficult 
to  see ;  it  is  from  not  attending  to  the  Issue  to  be  tried, 
and  from  not  knowing,  what  in  every  Case  is  required  to 
be  proved :  if  that  is  once  known  to  the  Solicitor,  to  whom 
the  task  of  collecting  and  arranging  the  Evidence  belongs ; 
he  will  be  enabled  to  judge  whether  his  proofs  are  sufficient 
to  support  his  Case ;  if  they  are  not,  he  will  stop  the  Cause 
in  time,  and  not  bring  it  forward  to  certain  failure  :  to  the 
reproach  of  his  own  professional  character,  and  to  the  in- 
jury, perhaps  ruin,  of  his  Client. 

To  settle  Evidence  with  accuracy  is,  in  many  cases,  a 
task  of  considerable  difficulty  :  the  Pleader  will  have  often 
not  only  to  decide,  on  what  Evidence  is  necessary,  but 
also  whether  what  he  is  possessed  of,  is  legal  and  admissi- 
ble. It  is  his  duty  too,  in  most  instances,  not  only  to 
point  out  what  will  support  his  own  Case ;  but,  judging 
by  anticipation  of  that  which  is  to  be  set  up  by  the  other 
side,  to  be  prepared  to  meet  it.  And  though  Solicitors, 
living  in  London,  may  have  recourse  with  ease,  to  such 
aid  and  benefit  by  its  assistance,  it  is  more  worthy  of  pro- 
fessional character  to  be  able  to  do  it  themselves.  But  to 
that  part  of  the  Profession  who,  living  at  a  distance,  are 
often  forced  to  rely  on  their  own  judgments,  when  called 
upon  to  prepare  Causes  for  Trial  at  the  Assizes  :  to  fur- 
nish them  with  the  means  of  preparing  their  own  Proofs, 
on  the  spot,  without  having  recourse  to  the  assistance  or 
advice  of  others,  must  be  an  object  of  not  inconsiderable 
importance  ;  it  must  too  be  recollected,  that  such  assist- 


Introduction.  v 

ance  cannot  be  had,  without  adding  something  to  the  ex- 
pence  of  a  Cause,  and  which  it  often  happens  the  Client  is 
little  able  to  bear. 

That  is  the  object  which  this  Work  proposes  to  attain. 
It  must  not  be  considered  as  an  elementary  Treatise  upon 
Evidence — that  has  been  effected  by  the  masterly  Work 
of  Mr.  Phillips,  which  should  be  found  on  the  shelf  of 
every  Lawyer ;  nor  upon  the  general  Law  of  Nisi  Prius — 
that  has  been  already  done  by  Mr.  Selwyn  and  myself. 
In  the  arrangement  I  have,  I  confess,  used  my  own 
Work, "  The  Digest  of  the  Law  of  Nisi  Prius,"  as  to  the 
order  and  arrangement  which  I  have  adopted,  and  to 
which,  for  the  general  Law  on  each  subject  which  I  have 
treated  of,  I  refer.  I  offer  this  to  the  Profession,  as  a  prac- 
tical Treatise  only,  on  a  most  important  part  of  the  Law, 
and  as  a  Book  of  general  reference  to  be  used  by  those  in 
Practice,  in  settling  and  arranging  Evidence  in  almost 
every  case  which  can  occur  at  Trials  at  Nisi  Prius.  Some 
Elementary  Points  must  necessarily  arise  and  be  referred 
to ;  for  these  the  authorities  are  given ;  but  it  must  not  be 
expected,  that  Authorities  will  be  quoted,  for  every  Posi- 
tion or  Rule  which  I  lay  down  to  direct  the  Practiser  in 
settling  his  Evidence  for  Trial.  The  greatest  part  of  the 
Work,  is  the  result  of  long  Practice  and  experience  ;  and 
the  information  which  it  contains,  derived  from  observa- 
tions suggested  during  that  period,  while  I  was  engaged 
in  reporting  Cases  at  Nisi  Prius,  and  in  daily  practice  at 
the  Bar. 

Of  its  utility,  I  feel  no  doubt :  of  its  execution,  very 
many.  It  is  a  wide  field,  and  required  much  labour  of 
reference,  and  diligence  in  compiling.  These  I  have  not 


vi  Introduction. 

spared :  whether  the  object  which  they  aimed  at  has  been 
attained,  it  is  for  others  to  decide. 

In  the  arrangement  of  the  subject,  I  have,  first  taken  a 
general  view  of  it,  and  laid  down  some  Rules  of  General 
Practice  applying  to  all  Cases  of  Evidence  at  Nisi  Prius ; 
secondly,  the  Evidence  applicable  to  particular  Actions. 


TABLE 


OF 


CONTENTS 


PAGE 

Introduction  -  Hi 

CHAP.  I. 

Settling  of  Evidence  far  Trials  at  Nisi  Prius  9 

CHAP.  II. 

Qj  Settling  the  Evidence  in  the  Action  ofAssumpsit       21 

CHAP.  III. 

Of  Settling  the  Evidence  in  the  Action  of  Debt  114 

CHAP.  IV. 

Of  Settling  the  Evidence  in  the  Action  of  Covenant       139 

CHAP.  V. 

Of  Settling  the  Evidence  in  Actions  of  Assault  and 

False  Imprisonment  150 

CHAP.  VI. 

Of  the  Evidence  in  the  Action  for  Adultery  167 


viii  TABLE  OP  CONTENTS. 

CHAP.  VII. 

. 

Of  Settling  the  Evidence  in  the  Action  of  Replevin      172 

CHAP.  VIII. 

Of  Settling  the  Evidence  in  the  Action  of  Trespass        180 

CHAP.  IX. 

Of  Settling  the  Evidence  in  the  Action  of  Ejectment     195 

CHAP.  X. 

Of  Settlmg  the  Evidence  in  the  Action  of  Slander         223 

CHAP.  XI. 

Of  Settlmg  the  Evidence  in  the  Action  for  Malicious 

Prosecution        -  229 

CHAP.  XII. 

Of  the  Evidence  for  the  Plaintiff  in  the  Action  of 

Trover      -  -  235 

CHAP.  XIIL 

Of  Settling  the  Evidence  in  the  Action  of  Trespass 
on  the  Case  ...  256 


ERRATA. 

Page  148,  line  20,  for  "ante  160,"  read  «  ante,  137.* 


A 
PRACTICAL  TREATISE 


OJf  THE 


SETTLING  OF  EVIDENCE 


FOR 


TRIALS  AT  NISI  PRIUS. 


CHAPTER  I. 

±N  settling  Evidence  for  the  Trials  of  Actions  at  Nisi 
Prius,  the  principles  on  which  it  is  founded  are  first  to  be 
considered  :  for  that  purpose  the  first  point  to  be  looked 
at  is  the  Issue,  as  joined  in  the  cause,  and  the  affirmative, 
or  negative,  averments  which  it  contains.  Affirmative 
averments  are  those  only  required  to  be  proved.  Issue 
may  be  joined  in  any  stage  of  the  proceedings  ;  on  the 
Plea,  Replication,  Rejoinder,  or  any  other  part  of  the 
pleading :  and  an  Issue  is  joined,  when  the  last  pleading 
denies  all,  or  part  of  the  facts  pleaded  in  the  preceding 
one ;  whereby  the  case  is  reduced  to  direct  affirmation  or 
negation. 

The  general  Issue  puts  the  whole  of  the  Declaration  in 
evidence,  and  makes  it  necessary  for  the  Plaintiff  to  prove 
every  material  fact  averred  in  it:  in  that  case  Issue  is 


10  Of  the  Principles  of  settling       [CHAP.  I. 

joined  on  the  Plea  by  the  Replication.  But  if  the  De- 
fendant pleads,  not  the  General  Issue,  but  a  Special  Plea, 
consisting  of  one  or  several  facts,  and  the  Replication  takes 
Issue  on  it,  it  is  either  on  the  whole  of  the  Plea,  or  on 
some  particular  fact,  or  facts,  averred  in  it.  When  that  is 
done,  if  the  Replication  takes  Issue  upon  all  the  facts  in 
the  Defendant's  Plea,  it  puts  the  Defendant  upon  proof 
of  the  whole  of  the  Plea,  and  of  all  the  facts  contained  in 
it.  If  the  Replication  denies  any  particular  fact  men- 
tioned in  the  Plea,  Issue  is  joined  on  that,  and  the  evi- 
dence is  confined  to  that  point  only. 

For  example : — If  the  Plaintiff  declares  that  the  De- 
fendant is  indebted  to  him  on  his  promissory-note,  and 
the  Defendant  pleads  the  General  Issue  non-assumpsit,  the 
Plaintiff  must  prove  his  Declaration,  by  proving  the  De- 
fendant's hand- writing  to  the  note.  If  the  Defendant  pleads, 
that  when  the  note  became  due,  "  he  tendered  and  of- 
fered to  pay  the  amount,"  and  the  Replication  denies  the 
Tender,  Issue  is  joined  on  it ;  which  is,  by  the  Plaintiff 
saying  in  his  Replication,  "  that  the  Defendant  did  not 
tender  the  money,  or  any  part  of  it :"  in  that  case  the 
Defendant,  by  not  denying  in  his  plea  that  he  had  made 
the  note,  admits  it,  and  rests  his  defence  on  the  Tender. 
It  is  an  affirmative  averment  on  his  part  that  he  did  so, 
and  the  whole  evidence  lies  on  him.  But,  if  to  the  Ten- 
der the  Plantiff  had  replied,  "  A  subsequent  demand  of 
payment  of  the  note,  made  on  the  Defendant,  and  a  refusal 
by  him  to  pay,"  on  which  Issue  was  joined  ;  in  that  case, 
the  Plaintiff  admits  the  Tender,  and  the  Defendant  is  not 
called  upon  to  prove  it;  but  the  whole  evidence  rests 
on  the  Plaintiff  to  prove  the  subsequent  demand  and 
refusal. 


CHAP.  I.]    Evidence  for  Trials  at  Nisi  Prius.  11 

This  will  exemplify  all  parallel  cases,  and  it  will  be 
seen  how  to  regulate  the  evidence  by  attending  to  the 
Issue ;  for,  where  there  is  no  General  Issue  pleaded,  the 
Defendant  admits  that  the  Plaintiff  had  a  cause  of  action, 
and  rests  his  defence,  not  on  a  denial  that  the  Plaintiff  had 
some  cause  of  action,  but  on  this  ;  that  he,  the  Defen- 
dant, has  defeated  it  by  some  collateral  matter.  As  if  the 
Plaintiff  declared  in  Assumpsit,  on  a  debt  due  to  him  by 
the  Defendant,  and  the  Defendant  pleads  the  Statute  of 
Limitations  only,  "  That  he  did  not  undertake  or  pro- 
mise within  six  years."  He  thereby  admits  that  he  did 
owe  the  debt  at  one  time  ;  but  that  it  is  extinct,  by  the 
Plaintiff  having  suffered  six  years  to  elapse,  leaving  it 
unsued  for.  So,  if  the  Defendant  was  to  plead  Accord 
and  Satisfaction  only,  "  that  he  delivered  a  horse,  e.  g.  to 
the  Defendant,  which  the  Plaintiff  had  accepted  in  dis- 
charge of  his  debt ;  if  the  Plaintiff  takes  Issue  on,  and 
denies  the  acceptance  or  delivery  of  such  thing,  in  satis- 
faction of  his  demand ;  the  Defendant  admits  that  the 
Plaintiff  had  once  a  cause  of  action,  but  he  discharges  it 
by  such  collateral  matter,  the  delivery  of  something  to 
him,  which  he  has  accepted  in  lieu  of  his  debt.  He  is, 
therefore,  bound  to  prove  what  he  affirms ;  the  delivery 
and  acceptance  on  the  terms  he  has  stated. 

It  rarely,  however,  happens  that  the  Defendant  rests 
solely  on  such  Pleas,  but  pleads  the  General  Issue  also, 
except  in  the  case  of  a  tender ;  which  then  puts  the  Plain- 
tiff upon  proof  of  his  cause  of  action,  as  stated  in  the 
Declaration. 

When,  therefore,  the  Issue  is  joined  on  the  whole  De- 
claration, by  a  plea  of  the  General  Issue,  the  Declaration 


12  Of  the  Principles  of  settling       [CHAP.  I 

must  be  taken  up  as  consisting  of  so  many  parts  as  there 
are  averments  in  it;  and  each  must  be  proved  in  its 
order. 

Thus  for  example ;  by  reference  to  a  Declaration  in  an 
Action  for  an  Escape,  which  will  be  found  at  length  in 
Chitty  on  Pleading,  Vol.  II.  page  185,  3d  Edit,  the  fol- 
lowing averments  will  be  found : — 

The  first  averment  is,  "  That  the  Plaintiff  had  reco- 
vered a  Judgment  against  one  E.  F.,  for  a  certain  sum  :" 
that  must  be  proved. 

The  next  averment  is,  "  That  the  Plaintiff  sued  out  a 

writ  of  ca.  sa.,  directed  to  the  Sheriff  of ,  and 

that  it  was  delivered  to  the  Sheriff  to  be  executed:"  this 
must  be  proved. 

The  next  averment  is,  "  That  the  Sheriff,  by  virtue  of 
that  writ,  arrested  E.  F. :"  the  fact  of  the  arrest  must  be 
proved. 

The  last  is, "  Thatthe  Sheriff  permitted  him  to  escape  :" 
that  must  also  be  proved,  by  giving  evidence  of  E.  F. 
having  been  seen  at  large  after  he  had  been  arrested,  as 
before. 

This  is  put  in  general  terms  :  the  mode  of  proving 
each  of  these  averments  will  be  given  in  its  proper  place. 

But  though  it  is  stated  generally  that  all  affirmative  aver- 
ments are  necessary  to  be  proved,  and  though  the  Plaintiff 
and  Defendant  are  equally  bound  to  prove  such  averments 


CH  A  p.  I.]     Evidence  for  Trials  at  Nisi  Prius.  13 

in  their  respective  Pleadings,  there  are  some,  though  of 
that  description,  which  are  deemed  immaterial;  that  is, 
which  do  not  affect  the  grounds  of  the  Action  or  defence, 
and  which,  for  that  reason,  need  not  be  proved. 

Thus,  the  day  laid  in  the  Declaration  is,  in  all  cases, 
immaterial ;  except  in  the  action  of  Ejectment ;  on  Penal 
Statutes  ;  or  where  it  makes  part  of  the  contract  on  which 
the  Action  is  brought :  such  as  in  Actions  on  bonds,  or 
written  instruments,  as  bills  of  exchange,  notes  or  the 
like ;  for  in  these  the  date  identifies  the  contract,  and 
makes  part  of  it.  Thus,  a  Declaration  on  a  Bond,  dated 
on  the  1st  of  January,  and  so  described  in  the  Declaration, 
would  not  be  proved  by  the  production  of  a  Bond,  dated 
the  10th,  for  they  would  appear  to  be  different  Instruments. 
But,  if  the  Declaration  stated  a  contract  for  the  sale  of 
goods,  as  made  on  the  first  of  January,  and  unpaid  for, 
and  the  evidence  was  that  the  contract  was  on  the  10th ; 
the  time  of  making  the  contract,  is  of  no  importance  ;  it 
is  the  breach  of  promise,  in  not  paying  for  them,  which 
is  the  ground  of  action  ;  and,  therefore,  the  averment  of 
the  particular  day  is  considered  immaterial.  In  those  lat- 
ter cases,  therefore,  it  is  sufficient  for  the  Plaintiff  to  prove 
his  cause  of  action  on  any  day  before  commencement  of 
the  action,  though  it  differ,  from  that  laid  in  the  Declaration. 

The  place  is  also,  in  transitory  actions,  immaterial ; 
for  the  legal  principle  is  that,  Actio  personalis  sequitur 
personam.  Debt  is  a  debt  every  where,  and  there  is  no 
locality  belonging  to  it ;  but  to  an  Action  that  concerns 
the  land,  there  is :  therefore,  where  in  Trespass  quare 
clausum  fregit,  or  in  Ejectment,  the  Declaration  lays 
the  fact  in  a  wrong  County  or  Parish,  it  is  fatal.  In  all 


14  Of  the  general  Ruk  for  settling      [CHAP.!. 

cases,  therefore,  of  this  description,  the  Plaintiff  should 
be  prepared  with  evidence  of  the  right  description  of  the 
place  in  that  respect,  (a) 

Wherever,  therefore,  in  local  actions,  the  place  is  ma- 
terial, and  is  improperly  laid  in  the  Declaration,  the  De- 
fendant should  be  prepared  to  prove  the  true  place,  and  the 
Plaintiff  would  be  nonsuited.  Therefore,  when  this  occurs, 
it  will  be  prudent,  in  advising  on  the  evidence  in  any  ac- 
tion, to  look  to  title  Venue,  in  the  books  of  Abridgment 
or  Practice ;  and,  if  the  Venue  is  improperly  laid,  the 
Defendant,  by  disproving  it,  entitles  himself  to  a  nonsuit. 

1  As  for  example  :  where  the  Stat.  31  Eliz.  chap.  5.  sect. 
2.,  and  21  Jac.  I.  chap.  4.,  direct  that  all  actions  on 
Penal  Statutes,  by  common  Informers,  shall  be  brought 
in  the  proper  County,  if  the  Defendant  brings  evidence 
that  the  offence  was  committed  in  a  different  County  from 
that  laid  in  the  declaration,  the  Plaintiff  must  be  non- 
suited. 

Having  now  stated  what  are  the  principles  on  which 
Evidence  is  to  be  settled  for  Trials  at  Nisi  Prius,  I  shall 
first  lay  down  a  few  general  Rules  to  be  applied  in  prac- 
tice in  all  cases  ;  and  secondly,  the  Rules  to  be  observed 
in  settling  the  Evidence  in  each  Action  separately. 


(a)  Cases  of  action  against  constables  or  officers  is  an  exception  to 
this  ;  but  those  actions  are  made  local  by  Statute  21  Jac.  I.  chap.  12. 
sect.  2. 


CHAP.  I.]     Evidence  for  Trials  at  Nisi  Prius.  15 


FIRST  OF  THE  GENERAL  RULES  AS  TO  SETTLING  EVI- 
DENCE FOR  TRIALS  AT  NISI  PRIUS  TO  BE  OBSERVED 
IN  PRACTICE. 


I. — Every  written  Instrument  to  which  there  is  a  sub- 
scribing witness,  can  only  be  given  in  evidence  by  calling 
the  subscribing  witness  to  prove  it :  he  must,  therefore, 
in  every  instance,  be  subpoenaed.  And  this  is  not  dis- 
pensed with,  though  the  Instrument  is  in  the  hands  of  the 
opposite  party,  and  the  name  of  the  subscribing  witness 
unknown.  In  such  a  case,  a  copy  must  be  obtained  un- 
der a  Judge's  order,  of  the  name  and  abode  of  the  sub- 
scribing witness ;  and  he  must  be  had  if  possible. 

(The  exceptions  to  this  rule  will  be  found  in  the  chapter 
of  Debt.) 

II. — Service  of  all  Papers  in  the  course  of  a  cause,  as 
Notices,  Summonses,  and  the  like,  at  the  Party's,  or  his 
Attorney's,  dwelling-house,  or  usual  residence,  is  good 
service.  Personal  service  is  only  required  when  an  At- 
tachment is  to  be  grounded  upon  it ;  but  no  service  is 
good,  if  made  on  a  Sunday.  All  Papers,  however,  con- 
nected with  the  cause  should,  after  appearance,  be  regu- 
larly served  on  the  Attorney  in  the  cause :  such  as  the 
notices  to  set-off;  to  produce  Papers  or  Notices  which 
is  necessary,  in  order  to  make  copies  of  them  evidence ; 
and  under  the  Stat.  49  Geo.  III.  of  contesting  a  Bank- 
ruptcy. 


16  Of  the  general  Rule  for  settling     [CHAP.  I. 

III. — Evidence  of  a  party's  hand-writing,  usually,  is 
proved  by  the  testimony  of  witnesses  who  have  seen  the 
party  write,  and  are  acquainted  with  his  character  of 
writing.  The  witness  is  not  called  upon  to  swear  posi- 
tively, that  the  paper  produced  is  the  hand-writing  of  the 
party,  but  only  that  he  believes  it  to  be  so.  But  a  hand- 
writing may  be  proved  by  a  witness  who  never  saw  the 
party  write,  but  who  has  corresponded  with  him ;  but  this 
evidence  is  admissible  only  where  the  correspondence  has 
been  acted  under :  as  for  example,  where  a  person,  whose, 
hand-writing  is  to  be  proved,  has  ordered  goods  which 
have  been  sent  to  him  pursuant  to  his  order,  and  he  has 
paid  for  them :  but  comparison  of  hands  is  not  allow- 
able, (b) 

IV. — When  any  Paper,  or  written  Instrument,  is  ir.  the 
hands  of  a  Party  in  a  Cause,  which  the  other  may  have 
occasion  to  call  for  and  use  as  evidence,  or  for  any  pur- 
pose, notice  must  be  given  to  produce  it ;  if  not  produced, 
the  Party  who  gave  the  notice  may,  on  proof  of  the  notice 
given,  and  that  there  was  such  Paper  or  written  Instru- 
ment in  the  opposite  party's  possession,  give  evidence  of 
it  by  a  copy,  or  by  parol.  But  if  a  copy  is  offered  in  evi- 
dence, it  must  be  proved  to  be  so.  The  notice  should 
properly  state,  specifically,  the  Paper  or  Instrument  re- 
quired. 

V. — Of  every  thing  which  is  matter  of  Record,  an  ex- 
amined copy  is  evidence  at  Nisi  Prius ;  as  of  a  Judgment, 
a  private  Act  of  Parliament,  and  the  like.  So  of  Books 
of  a  public  nature ;  and  which,  if  produced,  would  be 

(b)  Vide  I  Esp.  Dig.  N.  P.  176. 


CHAP.  I.}    Evidence  for  Trials  at  NisiPrius.  17 

of  themselves  evidence,  examined  copies  will  be  evidence : 
such  as  the  Bank  books ;  books  of  the  East  India  Com- 
pany ;  the  Journals  of  the  House  of  Commons ;  the  Coun- 
cil-book in  the  Secretary  of  State's  office,  and  the  like,  (c) 

VI. — The  evidence  must  correspond  with  the  Issue  in 
every  point,  or  the  Plaintiff  will  be  nonsuited,  (d)  As  if 
the  Issue  be  on  the  warranty  of  a  horse,  "  That  he  was 
steady  in  harness,"  and  the  evidence  be,  that  he  was  war- 
ranted "  sound,"  that  would  not  support  the  Declaration. 
If  the  action  be  "  Assumpsit  for  goods  sold  and  deli- 
vered," and  the  evidence  prove  the  demand  to  be  for 
"  money  lent,"  the  Plaintiff  would  fail  in  his  Action. 

VII. — In  many  cases  Notice  of  Action  is  required  to  be 
given ;  and  no  Action  can  be  commenced  until  the  ex- 
piration of  the  time  mentioned  in  it.  This  is  principally 
in  the  case  of  Actions,  against  Public  Officers ;  as  Justices 
of  the  peace,  Constables,  Officers  of  the  Excise,  &c. 

Where  the  Statute  requires  such  notice,  the  Plaintiff 
must,  at  Nisi  Prius,  be  always  prepared  to  prove  it ;  and 
he  should  also  have  the  Writ  ready  to  produce,  to  show 
the  regular  commencement  of  the  Action ;  and  that  it 
was  sued  out  after  the  time  required  by  the  Statute  was 
expired. 

This  is  done  by  calling  the  witness  who  served  the  no- 
tice on  the  Defendant,  and  by  his  production  of  a  copy  of 
it.  He  should  also  be  prepared  to  prove  the  actual  day 


(c)  Phillips  on  Evii!.  3.38. 

{d}  Vid.  2  Esp.  Dig.  N.  P,  172. 


IS  Of  the  general  Rule  for  settling      [CHAP.  I.- 

on  which  he  served  it.  Every  Attorney  keeps,  of  course, 
a  copy  of  all  notices  which  he  serves :  if  there  were  two 
copies  of  such  notice  of  Action  made  out  by  him  at  the 
same  time,  one  of  which  he  has  had  served;  and  the  other 
he  has  kept ;  it  will  be  sufficient  for  the  witness  to  produce 
the  latter ;  provided  he  had  compared  it  with  the  one  he 
had  served,  and  swears  to  the  service,  (e) 

It  is  usual,  however,  to  give  notice  to  the  Defendant  to 
produce  at  the  Trial,  the  notice  of  Action  served  on  him, 
considering  the  copy  kept  as  a  copy  merely :  that  however 
is,  by  the  authority  just  cited,  unnecessary.  But  I  would 
advise  such  notice  to  produce  papers,  letters,  &c.  to  be 
given  in  every  Action,  where  any  part  of  the  transaction 
on  which  the  Action  is  founded,  has  taken  place  through 
the  medium  of  Avriting  or  correspondence. 

j  VIII. — Every  Instrument  which  requires  a  stamp 
should  be  carefully  compared  with  the  Table  of  Stamps 
before  the  Trial,  to  see  that  it  is  properly  stamped,  and 
as  to  what  are  the  proper  stamps  :  the  Rules  are  these — 

1,  Every  Instrument  ought  to  have  the  Stamp  appro- 
priated by  the  Stamp  Acts  to  such  Instrument,  and  of  the 
value  required  by  the  statute.  But,  by  Stat.  43  Geo.  III. 
c.  127.  if  the  stamp  is  of  the  proper  denomination,  but  of 
a  higher  amount  than  the  Instrument  produced  required, 
it  may  be  given  in  evidence.  And  this  has  been  carried 
still  further,  by  Stat.  55  Geo.  III.  c.  184.  s.  10.  which 
enacts  that,  even  though  the  denomination  is  wrong,  yet, 
if  the  stamp  is  of  equal  or  greater  value  than  could  be 

(<?)  2  Bos,  Sc  Pull.  39. 


CHAP.  I.]     Evidence  for  Trials  at  Nisi  Prius.  19 

required  for  the  Instrument  offered  in  evidence,  it  will  be 
effectual ;  except  in  cases  where  the  stamp  used  on  such 
instrument  is  specially  appropriated  to  any  other  instru- 
ment, by  having  its  name  on  the  face  of  it. 

If,  therefore,  the  Instrument,  which  is  to  be  given  in  evi- 
dence, is  stamped  with  a  stamp  not  having  any  name  on 
it,  it  is  necessary  now  only  to  look  that  it  is  of  sufficient 
value  or  amount. 

2.  But,  though  an  Instrument  may  have  a  wrong  stamp, 
or  when  produced  is  found  to  have  none,  it  yet  may  be 
admitted  in  evidence  for  collateral  purposes ;  such  as  for 
a  witness  to  refresh  his  memory  by  it,  for  which  purpose 
he  may  refer  to  an  unstamped  receipt,  (f)    So,  if  there 
were  two  parts  of  an  agreement,  one  stamped  in  the  pos- 
session of  the  Plaintiff",  and  an  unstamped  one  in  the  pos- 
session of  the  Defendant,  and  the  Plaintiff  has  had  notice 
to  produce  his  part,  which  is  stamped,  and  he  does  not, 
the  unstamped  agreement  may  be  given  in  evidence  for 
the  Defendant,  (g) 

3.  Where  there  are  many  Parties  to  a  Deed,  if  they 
all  have  a  claim  upon  the  same  fund,  which  is  the  object 
of  the  Deed,  a  single  stamp  is  only  required,  though  each 
claim  a  separate  part ;  as,  ex.  gr.  a  composition  Deed 
with  creditors.    But,  where  each  claims  under  a  distinct 
right,  out  of  one  common  fund  or  subject,  there  must  be 
distinct  stamps,  (h) 

(/)  1  East.  460.    4  Esp.  N.  P.  C.  213. 
(g)  1  Taunt.  507.     1  Camp.  501. 
(A    13  East.  232. 


20  Of  the  general  Rule,  fcfc.         [CHAP.  I. 

These  are  the  general  Rules  applying  to  all  cases  of 
Trials  at  Nisi  Prius :  and  I  shall  now  proceed  to  consi- 
der, separately  and  distinctly,  the  Evidence  necessary  in 
every  Action  so  tried  there. 


21 


CHAPTER  II. 


OF    SETTLING     THE     EVIDENCE     IN     THE     ACTION     OF 
ASSUMPSIT. 

-i-N  treating  on  this  subject,  as  it  applies  to  this  Action, 
I  shall  first  point  out  the  evidence  which  is  required  to 
support  this  Action  in  the  different  cases  of  it  tried  at  Nisi 
Prius,  that  is,  the  evidence  on  the  part  of  the  Plaintiff ; 
and,  Sndly,  That  of  which  the  Defendant  may  avail  him- 
self in  answer.  These  rank  chiefly  under  the  following 
heads,  on  the  part  of  the  Plaintiff : — 

I. — In  the  case  of  express  contracts  in  writing. 

II. — In  the  case  of  express  contracts,  which  may  be 
made  either  verbally  or  in  writing. 

III. — In  the  cases,  as  far  as  they  respect  the  persons  of 
the  contending  parties,  and  the  relation  in  which  they 
stand  to  others. 

IV. — The  Evidence  on  the  part  of  the  Defendant. 

Of  express  contracts  in  writing ;  the  most  important 
are — 1.  Bills  of  Exchange  and  Promissory  Notes. — 2.  Po- 
licies of  Insurance. 


22  Of  settling  the  Evidence         [CHAP.  II. 


I.— Of  settling  the  Evidence  in  Actions  on  Bills  of  Ex- 
change,  and  zvhat  it  is  necessary  for  the  Plaintiff  to 
prove. 

1.  The  Plaintiff  must  produce  at  the  Trial,  the  Bill  of 
exchange,  or  the  Promissory  Note  itself  declared  upon. 
Evidence  of  the  loss  of  the  Bill,  or  Nete,  will  not  entitle 
the  Plaintiff  to  give  a  copy  in  evidence ;  it  must  be  proved 
to  have  been  destroyed,  for,  unless  the  actual  destruction 
of  the  bill  or  note  is  proved,  the  Plaintiff  cannot  recover 
by  the  production  of  a  copy  of  it,  or  at  all.  (a) 

Wherever,  therefore,  the  Plaintiff  offers  a  copy  in  evi- 
dence, he  must  call  a  witness  to  prove  that  the  bill  or  note 
was  subscribed  or  drawn  in  the  Defendant's  hand- writing : 
that  what  is  offered  in  evidence,  is  an  accurate  copy  or 
transcript  of  it,  by  having  compared  it  with  the  original ; 
and,  lastly,  to  prove  the  actual  destruction  of  it. 

II. — The  Plaintiff  is  never  called  upon  to  prove  the 
consideration  he  gave  for  the  Bill,  or  his  title  to  it ;  unless 
the  consideration,  or  his  title  to  it,  is  first  impeached  by 
evidence  produced  by  the  Defendant,  (b)  The  bare  pro- 
duction of  the  Bill  is,  therefore,  prima  facie  evidence  of 
title  in  the  Plaintiff. 

The  Evidence  which  will  entitle- the  Defendant  to  call 
on  the  Plaintiff  to  prove  the  consideration  given,  or  his 
title  to  the  Bill,  is,  e.  g.  that  he  was  swindled  out  of  it ; 

(a)  3  Campb.  324.    4  Taunt.  602.     1  Esp.  Dig.  N.  P.  176. 
(*)  1  Esp.  Dig.  N.  P.  178.    4  Taunt.  115. 


CHAP.  II.]  on  Sills  of  Exchange.  23 

that  it  was  given  for  an  illegal  consideration ;  or,  that  it  was 
stolen  from  him,  or  lost.  These  circumstances,  though 
not  sufficient  to  prevent  the  Plaintiff"  from  recovering  the 
amount,  if  he  was  a  bond,  fide  holder  of  it,  and  not  impli- 
cated in  the  fraud  or  illegality,  yet,  from  the  circumstances 
of  distrust  and  doubt  thrown  on  the  negotiation  of  the 
Bill,  he  is  required  to  prove  the  consideration  which  he 
gave,  or  how  he  became  possessed  of  it.  (c) 

Wherever,  therefore,  it  is  expected,  that  the  Defendant 
means  to  bring  forward  any  such  evidence,  the  Plaintiff 
must  not  content  himself  with  proof  of  the  hand-writing 
only ;  but  must  be  prepared  to  show,  how  he  became  pos- 
sessed of  the  Bill,  and  the  consideration  which  he  gave 
for  it. 

In  the  King's  Bench,  the  Defendant  may  bring  forward 
this  Evidence  at  the  Trial :  in  the  Common  Pleas,  the 
Court  have  made  a  Rule  that  the  Defendant  must  give 
notice  of  his  intention  to  do  so. 

III.— The  Plaintiff  being  the  holder  of  the  Bill,  is  either 
the  Payee  or  the  Indorsee ;  and  the  Evidence  required 
when  the  action  is  against  different  parties  on  the  Bill  is  as 
follows : — 

1.  If  the  Action  is  by  the  Payee  against  the  Acceptor  of 
a  Bill  of  Exchange,  or  the  maker  of  a  Promissory  Note, 
the  Plaintiff  is  required  only  to  prove  the  hand-writing  of 
the  Defendant ;  and  there  is  no  necessity  to  prove  a  pre- 
vious demand  of  payment  on  him ;  nor  to  prove  the 
drawer's  hand-writing. 

(c)  .4  Taunt.  115, 


24  Of  the  Evidence  in  Actions        [CHAP.  II. 

2.  If  the  Actwn  is  by  the  Payee  against  the  Drawer  of 
the  Bill  of  Exchange :  if  the  Bill  was  accepted,  the  Plain- 
tiff must  prove  the  acceptor's  hanckwriting  to  the  Bill, 
or  otherwise  identify  him  as  the  acceptor ;  a  demand  of 
payment  of  it  from  him  when  due ;  that  he  did  not  pay 
it,  and  notice  of  his  neglect  or  refusal  given  to  the  De- 
fendant :   and  then  prove  the  Defendant's  hand- writing 
as  drawer  of  the  Bill,  which  is  sufficient. 

If  the  Bill  was  refused  acceptance:  the  Plaintiff  must 
prove,  that  the  Bill  was  tendered  for  acceptance  to  the 
drawee  as  described  in  the  Bill,  and  his  refusal  to  accept ; 
and  then  prove  notice  of  his  refusal  given  to  the  Defend- 
ant, whose  hand-writing  must  be  proved. 

3.  If  the  Action  is  by  the  Indorsee  against  the  Ac- 
ceptor :  in  case  of  a  single  indorsement,  which  must  be 
by  the  payee,  the  Plaintiff  must  prove  the  Defendant's 
hand-writing  to  the  acceptance,  and  the  Indorser's  hand- 
writing on  the  back  of  the  Bill. 

What  is  said  here  of  a  single  Indorsement,  means  a 
general  Indorsement  by  the  Payee  by  putting  his  name  on 
the  back  of  the  Bill ;  which  is  called  an  indorsement  in 
blank  ;  but  if  he  made  a  special  indorsement,  as  to  pay  to 
A.  B. ;  then  the  indorsement  of  such  person  must  also  be 
proved,  (d) 

• 

If  there  are  several  Indorsers,  whose  indorsements  are 
stated  in  the  Declaration,  their  hands- writing  should  all  be 
proved.  But,  as  it  is  usual  to  have  a  second  count  in  the 
Declaration  against  the  acceptor,  stating  the  Erst  indorse- 

(d)  Vide  Chitty  on  Bills,  502,  last  Ed 


CHAP.  II.]  on  Bills  of  Exchange.  25 

ment  only  ;  proof  of  the  first  indorsees  hand- writing  only, 
will,  in  that  case,  entitle  the  Plaintiff  to  recover. 

IV. — If  the  Action  is  by  the  Indorsee  against  the  Drawer 
of  an  accepted  bill:  the  Plaintiff  must  prove  the  hand- 
writing of  the  Acceptor,  or  otherwise  identify  him  as  the 
Acceptor,  of  the  Payee,  or  first  indorser,  and  of  the  De- 
fendant. He  must  then  prove  a  demand  of  the  payment 
of  the  Bill  when  due  of  the  acceptor,  and  his  omission,  or 
refusal,  to  pay  it ;  and  notice  of  his  default  duly  given  to 
the  Defendant. 

But,  if  the  Bill  was  not  accepted,  the  Plaintiff  must 
prove  the  hand-writing  of  the  Indorser,  and  of  the  De- 
fendant ;  and  that  the  Bill  was  presented  for  acceptance 
to  the  Drawee,  as  described  in  the  Bill ;  his  refusal  to 
accept,  and  notice  to  that  effect  given  to  the  Defendant. 

V. — If  the  Action  is  by  the  Indorsee  against  the  In- 
dorser, the  Plaintiff  is  not  called  on  the  prove  the  hand- 
writing of  the  Drawer,  or  prior  Indorsers,  but  he  must 
prove  the  hand-writing  of  the  Defendant*  and  of  the  ac- 
ceptor, (if  the  Bill  was  an  accepted  one,)  and  a  demand, 
and  refusal,  or  omission,  to  pay  it  when  it  became  due,  and 
due  notice  to  that  effect  given  to  the  Defendant.  (<?) 

If  the  Bill  was  not  accepted,  the  Plaintiff  must  prove, 
that  the  Bill  was  presented  to  the  Drawee  for  acceptance, 
as  described  in  the  Bill,  and  which  he  refused  or  omitted 
to  do,  and  notice  of  that  circumstance  given  to  the  De- 
fendant ;  and  that,  with  proof  of  the  Defendant's  hand- 
writing,'will  be  sufficient. 

(e)  Vide  2  Camp.  182. 
D 


26  Of  the  Evidence  in  Actions         [CHAP.  II. 

VI. — "  The  Cases  here  put,  are  of  the  common  ones, 
of  acceptance  by  a  single  person,  on  whom  the  Bill  is 
drawn,  and  who  subscribes  his  name  to  it  in  token  of  ac- 
ceptance ;  but  there  are  other  cases,  in  which  a  Party  is 
made  liable  as  acceptor,  though  the  acceptance  is  not  so 
made.  These  are  cases  of  acceptance  by  procuration,  by 
letter,  by  parol,  by  withholding  or  destroying  the  Bill,  or 
by  one  Partner  for  another.  So  there  are  conditional  ac- 
ceptances, or  acceptances  payable  at  a  particular  time  or 
place  :  in  all  of  which  cases,  the  proofs  must  be  attended 
to." 

1.  If  the  acceptance  is  by  procuration,  or  agency ;  as  that 
is  an  acceptance  by  one  man  in  his  own  name,  for  ano- 
ther, who  is  the  Drawee  of  the  Bill,  and  who  is  sued  as  the 
Acceptor,  by  virtue  of  an  authority  given  by  him  for  that 
purpose ;  in  order  to  bind  the  Principal,  Evidence  must 
be  given  of  that  authority;  for  that  purpose  the  person 
himself  by  whom  this  acceptance  was  made  may  be  called 
as  the  witness  to  prove  it ;  it  is  the  best  Evidence,  and 
should  always  be  had  if  possible.  If  that  witness  cannot 
be  had  :  proof  of  a  power  of  attorney  given  by  the  De- 
fendant, to  him  who  as  agent  accepted  the  Bill,  will  be 
good  Evidence  ;  so  would  the  declarations  or  admissions 
of  the  Defendant,  -that  he  had  authorized  the  party  to  ac- 
'cept  Bills  for  him.  And,  lastly,  it  would  be  sufficient  to 
fix  the  Defendant  as  Acceptor,  that  the  Agent  was  in  the 
habit  of  so  accepting  Bills  on  his  Principal's  account, 
which  the  latter,  in  many  instances,  had  paid ;  but  in  this 
case  of  an  acceptance  by  procuration,  Evidence  of  the 
authority  to  accept  by  some  mode  or  other,  is  indispensa- 
ble.  (/) 

"(/)  Johnson  v.  Mason,  1  Esp.  N.  P.  C.  89. 


CHAP.  II.]  on  Bills  of  Exchange.  27 

2.  If  the  Acceptance  is  by  letter  ;  the  Defendant's  hand- 
writing subscribed  to  the  letter  must  be  proved ;  and  it 
must  be  clearly  made  out  that  the  promise  to  accept,  so 
given  by  letter,  referred  to  the  Bill  on  which  the  action  is 
brought,  either  by  its  having  been  enclosed  in  the  letter,  or 
stated  in  the  letter,  or  referring  to  it  in  unambiguous  terms. 

3.  Iftfie  Acceptance  is  by  parol ;  that  must  be  proved 
by  a  witness  who  heard  the  Defendant  say,  that  he  would 
accept  the  Bill :  and  the  same  attention  must  be  paid  to 
the  identifying  of  the  Bill  with  the  parol  acceptance ; 
such  as,   e.  g.  if  the  witness  had  the  Bill  in  his  hand  at 
the  time  when  the  Defendant  said  he  would  accept  it. 

4.  If  a  person  on  whom  a  Bill  is  drawn,  and  presented 
for  acceptance  ;  in  place  of  returning  it  either  immediately 
or  if  demanded,  within  due  time  after  it  has  been  left  for 
acceptance  ;  withholds  it  for  a  length  of  time,  or  destroys 
or  defaces  it ;  he  has  been  held  to  be  chargeable  as  the 
Acceptor,  (g)    In  such  case  the  Plaintiff  must  prove  a 
copy  of  the  Bill  which  was  left  with  the  Defendant,  in 
case  the  Plaintiff  has  never  obtained  possession  of  it  and 
prove  the  delivery  of  such  Bill  to  the  Defendant  at  a  par- 
ticular time  ;  a  demand  of  the  bill  in  due  time  after,  and 
that  the  Bill  was  not  returned  :  was  destroyed  or  defaced. 

5.  If  a  Bill  is  accepted  by,  or  indorsed  by  a  Firm,  con- 
sisting of  several  Partners  in  that  name,  whose  names  at 
length  stand  as  Defendants  on  the  Record,  the  Acceptance 
or  Indorsement  must  necessarily  be  in  the  hand- writing  of 

(g)  Chitty  on  Bills,  194,  and  the  cases  there  cited  ;  tame*,  yutcre, 
ft  vide  Jeune  v.  Ward,  1  Barn.  &  Aid.  Rep.  65 S. 


28  Of  the  Evidence  in  Actions        [CHAP.  II. 

one  of  them ;  in  that  case  the  Plaintiff  must  prove  the 
hand-writing  of  such  Partner,  and  that  he  is  a  member 
of  that  Firm  consisting  of  the  Defendants  on  the  Re- 
cord, (h)  But  if  there  are  several  acceptors'1  names  on  the 
Bills  the  Plaintiif  must  prove  the  hands-writing  of  each 
of  them,  (i) 

6.  If  the  acceptance  is  conditional,  as,  e.  g.  "  accepted 
payable  on  the  arrival  of  a  ship,"  the  Plaintiff  must  not 
only  prove  the  Defendant's  hand-writing  to  the  Bill,  but 
he  must  give  Evidence  of  the  actual  arrival  of  the  ship. 

So  if  the  acceptance  of  a  Bill  is  "payable  at  a  particu- 
lar place,"  (k)  the  Plaintiff  must  prove  a  demand  of  the 
payment  of  the  Bill  at  that  place ;  as  for  example,  in  the 
common  course  of  business  at  a  Banker's :  and  in  such 
case  it  is  incumbent  on  the  Plaintiff  to  prove,  not  only  a 
demand  of  payment  at  the  Banking-house,  but  within  the 
usual  hours  of  business ;  that  is,  before  five  o'clock  in 
the  afternoon. 

7.  If  the  Bill  is  payable  to  bearer,  proof  of  the  acceptor's 
hand- writing  only  is  sufficient. 

VII. — These  are  the  cases  which  usually  occur,  in 
which  the  Evidence  is  given  in  Court,  on  the  production 
of  the  Bill  itself,  and  with  reference  to  the  names  on  it : 
there  are  however  two  cases  of  collateral  evidence,  which 
are  of  themselves  sufficient  proof  of  the  Plaintiff 's  case ; 
and  in  which  no  further  evidence  is  required. 

(A)  Peake,  N.  P.  C.  16.    Chitty  on  Bills,  488. 

(0  1  Esp.  N.  P.  C.  135. 

(*)  7  East.  385.     1  Mau.  &  Sel.  28. 


CftAP.  II.]  on  Bills  of  Exchange.  29 

1.  If  the  Defendant  has  paid  money  into  Court  on  the 
whole  Declaration,  in  which  the  Defendant  is  declared 
against  as  a  Party  on  the  Bill,  it  is  sufficient  Evidence  for 
the  Plaintiff,  to  produce  at  the  Trial,  the  Bill  of  Exchange, 
and  the  copy  of  the  Rule  for  the  payment  of  the  money 
into  Court.  (/) 

2.  If  the  Defendant  is  sued,  as  Acceptor  of  a  Bill  of 
Exchange,  on  which  there  were  several  indorsements,  and 
when  the  Bill  became  due  he  has  asked  for  time  for  pay- 
ment, (m)  or  if,  when  it  became  so  due,  he  promised  pay- 
ment; (n)  this  supersedes  the  necessity  of  going  into 
proof  of  the  hands-writing  of  the  parties  whose   names 
are  on  the  bill ;  or  of  notice  of  its  dishonour.     But  the 
request  or  promise  must  be  distinctly  proved,  and  also 
that  it  applied  to  the  Bill  of  Exchange  mentioned  in  the 

'  Declaration :  of  this  the  best  Evidence  is,  that  of  a  wit- 
ness who  applied  for  the  payment  of  the  Bill  in  question, 
and  produced  it  to  the  Defendant  at  the  time  when  he 
asked  for  time  or  promised  to  pay  it. 

VIII. — "  In  laying  down  the  Rules  applicable  to  such 
cases  of  Evidence  as  are  before  stated  ;  Notice  of  the  dis- 
honour of  a  Bill  is  always  required,  where  the  party  sued 
was  not  first  liable,  but  becomes  so,  by  reason  of  the  de- 
fault of  the  party  who  was  so  :  this  is  the  case  in  all  Ac- 
tions on  Bills  against  the  drawer  or  indorser,  who,  being 
only  liable  on  the  default  of  the  acceptor,  notice  is  re- 
quired to  be  given  of  his  default  to  the  Defendant,  or  the 
Plaintiff  will  be  nonsuited." 


(0  3  Campb.  40.  (rn)  6  Esp.  N.  P.  C.  43, 

(«)  7  East.  230. 


30  Of  the  Evidence  in  Actions        [CHAP.  II. 

1.  With  respect  to  this  notice — it  should  be  given  by 
the  holder  of  the  Bill  when  it  became  due,  and  may  be 
either  verbally,  or  by  letter.  (0) 

If  the  notice  was  verbal,  it  is  proved  either  by  the  per- 
son who  gave  it  by  the  Plaintiff's  direction,  or  heard  him 
give  it :  and  the  witness  must  be  able  to  prove,  that  it  ap- 
plied to  the  Bill  on  which  the  action  is  brought. 

If  the  notice  was  by  letter,  which  is  good  notice ;  the 
Plaintiff  should  produce  and  prove  a  copy  of  the  letter 
written  by  him  to  the  Defendant,  informing  him  of  the 
non-payment  or  dishonour  of  the  Bill;  this  is  done  by 
calling  a  witness,  who  examined  the  copy  produced  with 
the  original  letter,  and  it  must  appear  that  it  was  addressed 
to  the  Defendant.  This  letter,  the  witness  should  be  able 
to  prove,  was  either  put  into  the  Post-office :  delivered  to 
postman  :  or  sent  away  in  the  usual  mode  of  sending  let- 
ters to  the  Post  from  the  Plaintiff's  house  :  or  was  per- 
sonally delivered  to  the  Defendant  himself ;  and  he  should 
also  be  able  to  speak  accurately  as  to  the  day  and  time  on 
which  it  was  put  into  the  Post-office,  or  delivered  to  the 
Defendant,  which  at  furthest  should  be  the  next  day  :  but, 
in  order  to  admit  this  Evidence,  the  Defendant  must  be 
served  with  a  notice  to  produce  the  original  letter. 

If,  in  consequence  of  such  notice  to  produce,  the  De- 
fendant produces  the  original  letter,  it  speaks  for  itself; 
if  not,  the  Evidence  above-stated  will  be  sufficient. 

2.  The  case  just  now  mentioned  is,  when  the  indorser 
(o)  1  Term  Rep.  167. 


C H  A  p.  IL]  on  Bills  of  Exchange.  3 1 

or  drawer  of  the  Bill,  or  his  residence,  is  known,  so  that 
the  notice  of  the  dishonour  of  the  Bill  given  by  letter, 
may  be  presumed  if  sent  by  the  post  to  have  come  to  his 
hand  ;  but  it  frequently  happens  that  he  is  not  to  be  found, 
and,  when  sued,  he  relies  on  the  want  of  notice  of  the  dis- 
honour of  the  Bill  in  due  time,  as  amounting  to  a  dis- 
charge of  him.  To  answer  this  case,  the  Plaintiff  should 
be  prepared  to  show,  by  a  witness,  every  degree  of  dili- 
gence and  attention  on  his  part  used  to  find  him  out ;  such 
as  by  proving  inquiries  made  where  he  lived  last,  or  in 
places  where  he  was  known  to  resort,  or  of  persons  likely 
to  know  something  concerning  him,  and  that  all  inquiries 
were  ineffectual. 

This  Evidence  should  also  be  had  in  cases  of  actions 
against  the  Drawer  or  Indorser,  in  which  a  previous  de- 
mand on  the  Acceptor  must  be  proved  ;  but  which,  if  he 
cannot  be  found,  after  inquiries  made,  and  endeavours  to 
find  him  proved,  as  stated,  will  be  sufficient  Evidence  to 
satisfy  the  necessity  of  a  demand. 

3.  In  actions  on  foreign  Bills  of  Exchange,  a  protest 
must  be  proved  to  have  been  made,  and  be  produced. 

In  the  case  of  Actions  upon  Promissory  Notes,  the 
Rules  as  to  Evidence  are  the  same  as  those  laid  down 
with  respect  to  Bills  '»f  Exchange.  The  make;  of  a  Pro- 
missory Note  is  as  the  Acceptor  of  a  Bill  of  Exchange, 
and  must  be  first  resorted  to  for  payment ;  and  is  his  de- 
fault creates  the  liability  of  other  parties  on  the  Note, 
they  must  have  notice  of  it  in  due  time  ;  and  if  sued,  they 
are  entitled  to  call  on  the  Plaintiff,  (the  holder  of  the  Note,) 


32  Of  the  Evidence  in  Actions        [CHAP  II. 

to  prove  a  demand  of  payment  by  him  made  on  the 
maker  of  the  Note,  his  default  and  notice  of  it  to  them. 
It  was  observed  by  Lord  Mansfield,  that  a  Promissory 
Note  assumes  the  form  of  a  Bill  of  Exchange  when  in- 
dorsed, for  then  the  maker  of  it  becomes  as  the  Acceptor ; 
the  person  to  whom  it  is  payable,  the  drawer ;  and  the 
Indorsee  the  Payee. 

The  Rules,  therefore,  laid  down  as  to  the  Evidence  on 
Bills  of  Exchange,  will  be  found  precisely  to  apply  to  ac- 
tions on  Promissory  Notes. 

Thus  in  an  action  on  a  Promissory  Note  by  the  Payee 
against  the  maker,  proof  of  the  hand- writing  of  the  latter 
only  is  required. 

If  it  is  by  the  Indorsee  of  the  Note  against  the  maker, 
proof  of  his  hand- writing,  and  that  of  the  Payee,  who  is 
necessarily  the  indorser  to  the  plaintiff,  is  sufficient. 

If  the  Action  is  by  the  Indorsee  against  the  Indorser, 
(the  payee,)  proof  of  the  hand- writing  of  the  maker  and 
indorser  are  required,  and  also  of  a  demand  on  the  maker 
of  it  for  payment ;  and  his  neglect  or  refusal,  and  notice 
to  that  effect,  given  to  the  Defendant. 

The  Rules  as  to  notice,  and  in  every  other  respect,  are 
the  same. 

And  note,  that  whenever  a  witness's  name  appears  to 
the  signing,  accepting,  or  negotiating,  any  Bill  or  Note,  he 
must  be  called  to  prove  it ;  and,  if  he  denies  having  seen 


CHAP.  II.]          on  Bills  of  Exchange. 

the  Party  subscribe  his  name,  the  hand-writing  may  be 
proved  by  other  means,  (p) 

(/j)  2  Campb.  636.    Peake,  N.  P.  C.  23,  and  136. 


Of  the  Evidence  on  the  part  of  the  Defendant  in  Actions 
on  Bills  of  Exchange  and  Promissory  Notes. 

These  matters  of  defence  usually  are — Usury,  Fraud, 
or  that  the  Bill  or  Note  was  given  for  a  consideration  con- 
trary to  law,  or  without  any  consideration  whatever. 

This  last  defence  can  only  be  available  between  the  ori- 
ginally contracting  parties  themselves;  for,  if  a  Bill  or 
Note  is  passed  to  a  third  person  by  a  bonajide  indorse- 
ment, the  party  sued  on  the  Bill  or  Note  cannot  set  up  the 
want  of  consideration  as  a  defence  against  him  ;  for  the 
act  of  acceptance  and  signing  a  Promissory  Note,  imports 
a  consideration  to  all  the  world.  But,  as  between  the 
Parties  themselves,  as  between  the  Acceptor  and  the 
Drawer  of  a  Bill,  payable  to  his  own  order,  or  between 
Payee  and  maker  of  a  Promissory  Note,  the  acceptor  of 
the  Bill,  or  maker  of  the  Note,  being  in  either  case  sued 
by  the  Payee,  may  set  up  as  a  good  defence,  that  there 
was  no  consideration ;  and,  if  that  is  proved,  the  Plaintiff 
cannot  recover. 

It  was  held,  until  passing  the  Act  of  Parliament  58 
Geo.  III.  c.  93.  that  if  a  Bill  of  Exchange,  or  Promissory 
Note,  had  been  given  for  a  usurious  consideration,  all  se- 
curities being  declared  by  the  Statutes  against  usury,  as 


34  Of  the  Evidence  in  Actions         [CHAP.  II. 

void  in  law,  the  defence  of  usury  could  be  set  up  against 
any  Indorsee,  even  though  ignorant  of  the  usury,  and 
though  he  had  given  a  bondf.de  consideration  for  the  Bill 
or  Note  ;  that  Statute,  however,  enacts,  "  That  no  Bill  of 
Exchange,  or  Promissory  Note,  which  shall  be  drawn 
after  the  passing  of  the  Act,  (June  10,  1818,)  shall, 
though  it  may  have  been  given  for  a  usurious  considera- 
tion, or  upon  a  usurious  contract,  be  void  in  the  hands  of 
an  Indorsee  for  a  valuable  consideration,  unless  such  In- 
dorsee had,  at  the  time  of  discounting  or  paying  such 
consideration  for  the  same,  actual  notice  that  such  Bill  of 
Exchange,  or  Promissory  Note  had  been  originally  given 
for  a  usurious  consideration,  or  on  a  usurious  contract." 

The  defence  of  usury,  therefore,  where  the  Action  is  by 
an  Indorsee  of  a  Bill  or  Note,  is  quite  taken  away,  unless 
the  Defendant  can  bring  home  to  him  a  knowledge  of  the 
consideration  being  originally  usurious.  The  Defendant 
may,  in  such  case,  prove  that  knowledge,  by  showing 
that  the  Plaintiff  was  present  when  the  Bill  or  Note  was 
drawn,  and  knew»on  what  account  it  was  made;  or  that 
he  was  told  of  it  before  he  took  such  Bill  or  Note  :  if  he 
is  able  to  do  so  it  will  be  no  answer  for  the  Plaintiff  to 
show  that  he  gave  for  it  a  bonafide  consideration. 

What  the  Statute  has  enacted  in  the  case  of  usury,  was 
always  the  law,  where  the  defence  was  fraud,  or  the  ille- 
gality of  the  consideration.  The  Acceptor  of  a  Bill  of 
Exchange,  or  maker  of  a  Note,  could  never  set  up  against 
an  Indorsee,  that  he  had  accepted  the  Bill,  or  drawn  the 
Note,  for  an  illegal  consideration  :  such  as,  e.  g.  for  illegal 
insurances  in  the  lottery,  or  was  induced  to  do  so  by  a 
fraud  practised  on  him  by  the  Payee,  unless  he  could  im-  • 


CHAP.  II.]         on  Policies  of  Insurance.  35 

plicate  the  Plaintiff  with  full  knowledge  of  it :  but  such 
would  be  good  Evidence  if  the  Action  was  by  the  Payee 
himself  against  the  Acceptor  or  maker  of  the  Note. 

The  most  usual  defence  in  Actions  of  Bills  of  Ex- 
change, or  Promissory  Notes,  is  want  of  notice  of  the 
dishonour;  but,  as  this  is  affirmative  Evidence  on  the 
part  of  the  PJaintiff,  that  he  did  give  due  notice,  as  stated 
before  ;  the  Defendant  has  only  to  see  that  such  notice  is 
proved  to  hav^  been  given  to  him  in  due  time.  If  notice 
was  given  by  letter,  to  make  it  Evidence  of  notice,  the 
Defendant  should  have  had  notice  to  produce  the  letter. 
If  Defendant  has  it,  he  should  produce  it ;  and  the  Post- 
mark on  the  letter  will  show  the  actual  time  of  its  being 
put  into  the  office,  which,  if  it  was  too  late,  the  Plaintiff 
will  be  nonsuited  ;  or  he  may  prove  by  other  testimony, 
the  actual  time  of  receiving  the  notice. 

The  Defendant  should  also  attend  to  the  stamp ;  as,  if 
it  is  not  correct,  the  Plaintiff  cannot  recover  on  the  Bill  or 
Note. 

The  second  description  of  written  agreements  proposed 
to  be  considered  was,  Policies  of  Insurance,  I  shall  there- 
fore proceed  to  lay  down  :•— 

1.  The  rules  for  settling  the  Evidence  for  the  Plaintiff 
in  Actions  on  Policies  of  Insurance  ;  and,jirst,  on  the  part 
of  the  Plaintiff. 

The  Plaintiff  in  this  Action  declares  in  Assumpsit  on  the 
Policy,  (q)  The  material  averments  in  the  Declaration 

(?)  1  Esp.  Dig.  N.  P.,  from  73  to  105. 


36  Of  the  Evidence  in  Actions         [CHAP  II. 

which  are  necessary  to  be  distinctly  proved,  are— 1.  That 
the  Defendant  subscribed  the  Policy. — 2.  That  the  Plain- 
tiff was  interested  to  the  amount  of  the  sum  set  opposite 
to  the  Defendant's  name. — 3.  That  the  Ship  sailed  on  the 
voyage  insured,  and  was  lost  by  the  means  insured  against, 
and  as  stated  in  the  Declaration. 

The  course  of  Evidence  at  the  Trial  at  Nisi  Prius  is, 
first,  to  produce  the  Policy  itself,  observing  that  it  is  pro- 
perly stamped. — >2.  To  prove  that  the  Befendant  sub- 
scribed the  Policy  in  the  character  of  an  underwriter  is 
the  next  step ;  this  is  either  in  the  Defendant's  own  hand- 
writing, or  by  some  Person  deputed  or  authorised  by  him 
to  sign  Policies  for  him. 

If  the  Policy  is  subscribed  by  the  Defendant  himself, 
it  is  sufficient  to  prove  his  hand- writing  ;  if  it  is  by  ano- 
ther Person  in  the  common  form  of  "  A.  B.  for  C.  D. 
(the  Defendant)  200/.  e.  g."  it  will  be  then  necessary  to 
prove  such  Person's  hand- writing,  and  also  that  he  was 
authorized  by  the  Defendant  to  subscribe  Policies  for 
him.  To  prove  this,  the  Party  so  authorized  is  the  usual, 
and  in  fact  the  best  witness ;  as  he  can  prove  as  well  the 
authority  given  to  him  for  the  purpose  by  the  Defendant, 
as  his  own  subscription  of  the  Policy  ;  but  if  he  is  dead, 
or  cannot  be  brought  forward :  the  Plaintiff  must  prove 
that  Person's  hand-writing,  and  then  call  witnesses  who 
can  speak  to  the  Defendant's  having  given  him  such 
general  authority ;  by  the  admission  of  the  Defendant 
himself,  or  by  his  having  paid  losses  on  Policies  so  under- 
written in  his  name.  The  subscription  to  the  Policy, 
and  the  circumstances  attending  it,  as  to  the  representa- 
tion and  warranty  made  at  the  time,  when  material ;  are 
usually  proved  by  the  Broker  who  effected  the  Policy. 


CHAP.  II.]          on  Policies  of  Insurance.  37 

3.  It  next  becomes  necessary  for  the  Plaintift'.to  prove, 
that  he,  or  if  the  Insurance  is  by  an  Agent,  that  the  Prin- 
cipal, is  interested  to  the  amount  of  what  he  seeks  to 
recover. 

If  the  Policy  is  on  the  Ship,  it  has  been  held  to  be  suf- 
ficient Evidence  for  him  to  show  that  he  was  in  possession 
of  her ;  (r)  but  if  there  is  any  doubt  in  that  respect,  or 
that  the  Plaintiff's  property  in  her  may  be  disputed,  he 
should  be  prepared  to  show  a  complete  and  perfect  title 
under  the  Ship  Registry  Acts.  It  will  be  mentioned  more 
at  large  hereafter  how  such  a  title  is  to  be  made  out.  (s) 

If  the  Insurance  is  on  Goods  :  the  Plaintiff  must  show 
the  shipping  of  them  on  board  the  Vessel  insured,  and  the 
value,  and  that  they  belonged  to  him  or  to  his  principal. 
For  this  purpose  (t)  the  Bill  of  Lading  is  Evidence  to  the 
extent  of  it,  if  signed  by  the  Master  or  Mate,  and  of  the 
Consignee's  interest;  (u)  but  if  there  are  the  words, 
"  Contents  unknown,"  also  signed  by  them,  so  that  they 
do  not  charge  themselves  with  the  receipt  of  any  goods  in 
particular,  the  Bill  of  Lading  is  no  Evidence  either  of  the 
quantity  or  value  of  the  goods,  or  of  the  interest  of  the 
Consignee.  But  though  this  may  be  a  summary  mode  of 
proof  of  interest,  the  Plaintiff  may  prove  the  actual  ship- 
ping of  the  goods  on  board,  and  the  value  of  them,  which 
will  be  sufficient  to  support  that  averment.  This  may  be 
done  by  witnesses  who  knew  of  such  shipment  having 
been  made,  and  of  its  value. 

4.  The  sailing  of  the  Ship  on  the  voyage  insured,  is 

(r)  4  East.  430.  («)  5  Term  Rep.  712. 

(0  1  Esp.  N.  P.  C.  373.  («)  3  Taunt.  303. 


38  Of  the  Evidence  in  Actions       [CHAP.  II. 

next  to  be  proved;  but  as  the  voyage  is  always  from  a 
Place  to  some  other  Port  or  Place,  and  the  time  of  her 
sailing  is  material,  these  facts  are  also  necessary  to  be 
proved.  These  facts  are  generally  proved  by  the  Master, 
Supercargo,  or  some  of  the  Ship's  crew,  who,  from  being 
on  board,  are  able  to  speak  to  the  facts  :  but  the  loss  must 
be  proved  to  have  taken  place  by  the  means  described  in 
the  Declaration  ;  as  if  the  loss  is  stated  in  the  Declaration 
to  have  arisen  from  Capture,  it  would  be  a  variance  if 
proved  that  it  was  by  perils  of  the  sea,  and  would  not  sup- 
port the  Declaration. 

It,  however,  not  unfrequently  happens,  that  a  Ship  at 
Sea  founders,  and  all  the  Crew  perish,  so  that  there  is  no 
Evidence  to  be  had  from  any  of  those  who  had  been  on 
board,  and  the  Declaration  states  the  loss  to  be  by  perils 
of  the  Sea ;  in  that  case,  the  averment  of  loss  is  supported 
by  Evidence  to  this  effect,  (v)  That  the  ship  sailed  at  a 
particular  time  from  the  Port  from  whence  she  was  In- 
sured ;  that  the  usual  time  taken  to  perform  the  Voyage 
Insured  was  of  a  certain  period  ;  and  that  though  that  time 
is  long  since  elapsed,  she  has  never  been  h«ard  of :  this  is 
Evidence  to  go  to  the  Jury  of  a  total  loss. 

In  actions  on  Policies  of  Insurance,  (x)  the  Assured  and 
Insurers  are  bound  to  the  strictest  adherence  to  the  terms 
of  the  Policy;  any  concealment,  misrepresentation,  or 
breach  of  the  warranty  given  on  the  Policy,  discharges  it ; 
and  as  these  matters  are  rather  matters  of  defence,  than  as 
required  to  be  proved  on  the  part  of  the  Plaintiff,  I  shall 

(•y)  2  Stra.  1199. 

(or)  1  Esp.  Dig.  N.P.  81.  and  to  page  89. 


CHAP.  II.]  On  Policies  of  Insurance.  39 

consider  them  under  the  head  of  Evidence  for  the  De- 
fendant. 


2.   Of  settling  the  Evidence  on  the  part  of  the  Defendant  in 
Actions  on  Policies  of  Insurance. 

Policies  of  Insurance  are  construed  strictly,  and  any 
failure  on  the  part  of  the  Plaintiff,  as  to  any  matter  arising 
under  it,  or  any  fraud,  will  vitiate  it  wholly. 

The  usual  subjects  of  defence  are — 

1.  Concealment  of  Circumstances. — Such  as,  in  case  the 
Ship  had  sailed,  when  she  was  last  heard  of;  (y)  whether 
she  had  met  with  bad  weather  and  been  forced  into  ano- 
ther Port.     In  fact,  the  concealment  of  any  circumstance 
which  may  vary  the  risk  insured  against,  will  have  the  ef- 
fect of  avoiding  the  Policy. 

2.  A  false  representation,  (z) — Such  as,  that  the  Ship 
was  seen  in  a  particular  place  or  latitude,  at  a  particular 
day,  which  turns  out  to  be  otherwise ;   that  she  had  such 
a  Crew,  or  so  many  guns,  which  she  had  not ;  and  this, 
though  made  by  the  Insurance  Broker,  shall  avoid  the  Po- 
licy, (a) 

3.  A  false  Warranty,  (b] — This  only  differs  from  a  re- 
presentation in  this  respect,  that  it  makes  part  of  the  Po- 

(t/)   1  Esp.  Dig.  N.  P.  86.  3  Burr.  1909. 
(z)  1  Esp.  N.  P.  Dig.  81.  Dougl.  247. 
(a)  1   Campb.  530. 
(d)  1  Esp.  Dig.  N.  P.  82. 


40  Of  the  Evidence  in  Actions        £CHAP.  II. 

licy,  it  being  written  on  it ;  any  defect  or  failure  in  the 
circumstances  so  warranted,  renders  the  Policy  absolute- 
ly void.  Such  as,  if  a  Ship  is  warranted  to  be  a  neutral : 
to  carry  so  many  guns  :  to  be  in  Port  when  the  Policy  is 
signed ;  when,  in  fact,  she  has  sailed :  or  to  sail  with  Con- 
voy when  she  has  not  done  so.  All  these  being  falsified 
by  the  Defendant  are  good  Evidence  to  defeat  the  Action. 

In  preparing  the  Evidence  as  to  these  points,  what  the 
warranty  was,  appears  by  the  production  of  the  Policy  it- 
self. But  what  circumstances  were  mentioned,  or  Docu- 
ments shown  to  the  Defendant,  before  he  underwrote  the 
Policy,  or  what  representations  were  made  to  him  at  the 
time,  is  matter  of  viva  voce  proof. 

What  the  representations  were,  and  what  Documents 
were  produced,  the  Broker  who  effected  the  Policy  is  the 
usual  witness  to  prove  ;  but  as  he  is,  for  the  most  part,  fa- 
vourable to  the  Insured,  and  may  state  the  representations 
made  by  himself  differently  for  the  truth,  he  may  be  con- 
tradicted, or  Evidence  in  chief  be  given  by  Persons  who 
heard  it,  or  who  knew  of  the  representations  made  to  the 
first  Underwriter  on  the  Policy,  which  is  Evidence  of  the 
actual  representation  made  by  the  Broker  when  the  Poli- 
cy was  first  underwritten,  (c) 

If  the  facts  turn  out  to  be  different  from  the  representa- 
tion, it  avoids  the  Policy ;  but  those  facts  are  matters  of 
positive  Evidence. 

Thus,  the  Defendant  may  prove,  that  the  Ship  repre- 
sented to  be  in  Port,  had^  in  fact,  sailed  some  days  before ; 

(c)  3  Burr.  1361. 


CHAP.  II.]  On  Policies  of  Insurance.  41 

that  she  had  met  with  a  gale  of  wind,  by  which  her  tim- 
bers were  strained  ;  (d)  that,  though  represented  to  have 
a  certain  Crew,  she  had  not  so  many  on  board.  It  is  im- 
possible to  enumerate  all  the  circumstances  at  length, 
forming  matter  of  defence  ;  it  is  sufficient  to  observp,  that- 
it  is  a  contract  strictissimi  juris,  and  good  faith  in  the  en- 
tering into  it,  and  in  the  performance  of  it,  are  always  re- 
quired ;  therefore,  the  smallest  deviation,  except  for  good 
cause,  from  the  track  of  the  voyage,  avoids  the  Policy. 
This  deviation  may  be  proved  by  any  one  on  board,  or 
by  Persons  on  board  another  Ship  who  saw  her  out  of  her 
latitude  and  course  of  the  voyage.  But,  independently 
of  express  contract,  there  is  this  implied ;  one,  that  the 
Ship  at  the  commencement  of  the  voyage  was  sea- worthy: 
properly  documented t  for  the  voyage:  of  the  country 
described  in  the  Policy,  if  not  an  English  vessel.  The 
fact  of  sea- worthiness  is  usually  proved  by  calling  Ship- 
builders, or  persons  acquainted  with  Shipping,  to  speak  to 
the  fact. 

But,  it  should  be  observed,  that  the  Protest  of  the  Cap- 
tain is  in  no  case  Evidence  of  the  facts  contained  in  it, 
nor  are  the  written  opinions  of  Persons  who  surveyed  the 
Ship,  as  to  her  sea-worthinesss. 

In  questions  concerning  losses,  the  Sentences  of  Courts 
of  Foreign  Judicature  are  good  Evidence,  and  are  given 
in  Evidence  by  producing  copies  of  the  Judgment  under 
the  Seal  of  the  Court,  (e) 

With  respect  to  viva  voce  Evidence. 

(d)  i  Esp.  Dig.  N.  P.  80. 

CO  4  Esp.  N.  P.  C.  228.  Vid.  Esp.  Dig.  N.  P.  177. 

F 


42  Of  the  Evidence  in  Actions        [C  H  A  P  .  II 

1.  The  Consignee  of  the  Cargo  is  a  good  witness  to 
prove  the  interest.  (/*) 

2.  »To  disprove  Barratry,  the  Master  of  the  Vessel  is 
4»  an*  admissible  witness,  unless  released  by  the  .under- 
writer, (g) 

3.  If  the  sea-worthiness  of  a  Vessel  is  disputed  in  an 
Action  on  the  Policy,  (A)  the  best  Evidence  is,  either  that 
of  the  Persons  who  repaired  her  before  the  voyage,  or 
who  surveyed  her  before  she  sailed  :  but  the  Captain,  or 
any  of  the  Crew,  may  prove  the  same ;  but  it  must,  in 
all  cases,  be  observed,  that  it  is  sufficient  to  prove  her 
sea- worthy  at  the  time  of  her  sailing,  (i) 


II. — Having  now  stated  how  the  evidence  is  to  be  set- 
tled in  Actions  on  Bills  of  Exchange,  Promissory  Notes, 
and  Policies  of  Insurance,  which  are  contracts  wholly  in 
writing,  I  shall  proceed  to  consider  the  Evidence  neces- 
sary in  this  Action,  on  Contracts,  which  may  be  either  by 
parol,  or  in  Writing  ;  and  point  out  in  what  manner  it  is  to 
be  settled  for  Trial. 

The  principal  heads  under  this  head  are  Actions. — 1. 

(/)  2  Esp.  Dig.  N.  P.  175.  3  Taunt.  303. 
(#)  1  Esp.  N.  P.  C.  339. 
(A)  1  Esp.  Dig.  N.  P.  89. 
(0  Park.  Ins.  220. 


CHAP.  II,]  for  Use  and  Occupation.  43 

For  Use  and  Occupation. — 2.  On  Special  Agreements. — 
3.  On  Contracts  of  Sale. — 4.  On  the  common  Counts  in 
this  Action. 

1.  Of  settling  the  Evidence  in  Assumpsit  for   Use  and 

Occupation. 

First,  on  the  part  of  the  Plaintiff. 

This  form  of  Action  is  now  used  in  place  of  the  Ac- 
tion of  Debt  for  Rent ;  but  the  latter  Action  still  may  be 
maintained ;  (/<*)  and  in  settling  the  Evidence,  these  rules 
are  to  be  observed. 

1.  Where  the  Defendant  has  become  Tenant  to  the 
Plaintiff,  (/)  by  a  taking  from  him  by  a  direct  contract,  no 
further  Evidence  is  required  on  the  part  of  the  Plaintiff, 
than  to  prove  :  That  he  let  the  Premises  to  the  Defend- 
ant, whether  they  are  Lands,  Houses,  Lodgings,  or  Te- 
nements of  any  description,  at  a  certain  Rent,  or  that  he 
let  him  into  possession  of  them  as  Tenant ;  That  the  De- 
fendant occupied  them  as  such,  for  the  time  for  which 
the  Plaintiff  seeks  to  recover  Rent.  He  must  then  prove 
the  amount  of  the  Rent  reserved,  if  there  was  an  agreement 
for  the  Rent  to  be  paid;  or  if  not,  what  is  the  yearly  value 
of  the  Premises  ;  or  if  let  by  the  quarter,  month,  or  week, 
the  value  for  that  time. 

But,  if  the  Defendant  has  ever  paid  Rent  to  the  Plain- 
tiff,' proof  of  that  alone  establishes  the  Plaintiff's  right  to 
recover,  (m) 

(*)  6  Term  Rep  62.  (0  1  Esp.  Dig.  N.  P.  29. 

(m)  Peake  N.  P.  C.  192.     2  Taunt  147. 


44  Of  the  Evidence  in  Actions         [CHAP.  II. 

2.  Such  is  the  case  where  the  Plaintiff  has  himself  let 
the  Premises  to  the  Defendant,  or  where  the  Defendant 
has  paid  him  Rent ;   but  if  the  Plaintiff  claims  as  Heir, 
Executor,  or  Administrator,  Devisee,  or  Assignee,  of  the 
first  Lessor,  and  the  Defendant  has  never  paid  him  Rent, 
then  further  Evidence  is  required  to  establish  his  title  to 
the  Rent.     In  all  these  cases,  therefore,  the  Plaintiff  must 
first  show  :   That  the  Defendant  held,  as  Tenant,  to  the 
Person  under  whom  he  derives  title,  by  the  same  Evi- 
dence, as  above  stated,  where  the  Action  is  by  the  origi- 
nal Lessor.     Having  done  so,  if  the  Plaintiff's  title  is  as 
Heir,  he  must  prove  his  ancestor's  death,  and  that  he  is 
Heir  to  him ;  this  is  where  the  Lessor  is  seized  in  fee.     If 
the  Plaintiff  claims  as  Executor  or  Administrator,  he  must 
make  profert  of  the  Probate,  or  Letters  of  Administration, 
which  will  be  sufficient,  if  there  is  no  Plea  of  ne  unques 
Executor  or  Administrator ',  but,  if  there  is,  the  Probate 
or  Letters  testamentary  must  be  produced.     This  is  the 
case  where  the  Lessor  was  himself  only  entitled  as  Lessee 
for  years  to  some  other  Person,  in  which  case  the  term 
passes  to  the  Executor  or  Administrator  of  the  deceased. 

3.  If  a  Devisee  is  the  Plaintiff,  and  the  Lessor  was  Te- 
nant in  fee,  the  Plaintiff  must  prove  the  Testator's  will  by 
calling  the  witnesses ;   for  which  see  post,   Chapter  of 
Ejectment.     But,  if  the  Plaintiff  is  a  Legatee,  and  the  de- 
ceased had  himself  but  a  term  for  years  in  the  Premises, 
which  he  has  bequeathed  to  the  Plaintiff,  he  must  produce 
the  Probate  of  the  Testator's  will,  and  show  the  consent 
of  the  Executor  to  the  Devise,  as  necessary  to  give  him  a 
title  to  the  Lease,  by  virtue  of  which  he  claims  to  be  en- 
titled to  the  Rent. 


CHAP.  II.]          for  Use  and  Occupation.  45 

4.  Tfthe  Plaintiff  claims  as  Assignee  of  the  Lessor,  he 
must  make  out  a  regular  title  from  him,   by  proving  the 
several  Deeds  and  Conveyances  giving  him  title.     But,  it 
must  be  observed,  as  a  general  rule  in  settling  Evidence 
for  Plaintiffs,  that  proof  of  title  is  only  required,  where  the 
Plaintiff  is  a  Person  whom  the  Defendant  has  never  re- 
cognised as  his  Lessor ;  for,  as  has  been  observed,  where 
the  Action  is  between  the  originally  contracting  Parties, 
(n)  proof  of  the  taking  of  .the  Premises  from  the  Plaintiff, 
and  the  occupation  by  the  Defendant  by  his  permission, 
or  if  the  Defendant  has  paid  him  Rent,  or  if  a  distress  has 
been  made  on  the  Defendant  for  Rent,  and  it  has  been  le- 
vied under  it;  all  these  cases,  on  being  proved,  are  sufficient 
Evidence  of  the  Plaintiff's  title,  and  the  Defendant  cannot 
call  for  any  other,  and  is  himself  precluded  from  impeach- 
ing it.  (o) 

5.  All  these  facts  last  stated,  may  be  proved  by  witness- 
es ;  but,  if  there  was  any  agreement  in  writing,  not  by  Deed, 
between  the  Parties,  specifying  the  letting,  the  term,  the 
rent,  &c.  the  Plaintiff  may  give  this  in  Evidence  by  Stat. 
11  Geo.  2.  c.  19.  under  the  general  Count  in  Assump- 
sit :  *'  That  the  Defendant  was  indebted  to  the  Plaintiff  in 
/.         for  the  use  and  occupation  of  a  certain  dwelling- 
house,  e.  g.  before  that  time  had,  used,  occupied,  and 
enjoyed  by  the  Defendant  by  the  Plaintiff's  permission, 
&c."     But,  if  the  Plaintiff  proves  the  letting  of  the  Pre- 
mises to  the  Defendant,  it  is  not  required  of  him  to  prove, 
that  the  Defendant  actually  entered  and  occupied  them  ; 
it  is  sufficient  that  the  Defendant  might  have  done  so  if 
he  pleased,  and  was  not  prevented  by  the  Plaintiff. 

(«)  1  Esp.  Dig.  N.  P.  31. 

(o)  3  Campb.  372.  5.  T.  Rep.  5. 


40  Of  the  Evidence  in  Actions        [CHAP.  II. 

2.  Of  the  Evidence  on  the  part  of  the  Defendant  in  As- 
sumpsit  for  Use  and  Occupation. 

This  is  what  he  may  give  in  Evidence  under  the  Plea 
of  non-assumpsit.  He  may  show — 

That  the  Premises  were  let  for  an  unlawful  purpose,  as 
for  a  Brothel,  for  example  ;  and  the  Plaintiff,  in  such  case, 
cannot  recover,  (p) 

That,  though  the  Defendant  entered  and  occupied  the 
Premises,  (q]  it  was  not  in  the  character  of  a  Tenant,  but 
that  he  was  let  into  possession  on  a  treaty  for  a  sale  of 
them,  which  was  not  carried  into  effect,  (r) 

That  the  Lessor  was  bound  to  put  the  'Premises  into 
repair  before  the  Defendant  took  possession,  which  he  had 
not  done,  and  that  they  were  not  habitable.  But  it  will 
not  be  a  defence,  that  the  Premises  were  burnt  down,  (s) 

It  has  however  been  held,  that  though  the  Defendant, 
the  Lessee,  cannot  controvert  his  Lessor's  title';  yet  he  may 
show,  that  it  is  at  an  end,  and  that  he  has  been  called  upon 
to  attorn  to  another,  (t)  So  he  may  show  that  the  Lessor 
was  Executor  durante  minore  (State  of  A.  B.  and  that  A. 
B.  became  of  full  age  and  claimed  the  Rent :  that  the  land 
was  Copyhold,  and  forfeited  to  the  Lord  of  the  Manor, 
to  whom  he  paid  Rent :  but  in  such  case  the  Defendant 
must  go  further,  and  show  that  the  Person  from  whom  he 

(A)  1  Esp.  N.  P.  C.  13.  (?)  Peake,  N.  P.  C.  192. 

(r)  2  Taunt.  147.  (*)  4  Taunt.  45. 

(?)  1  Esp.  Dig.  N.  P.  31. 


CHAP,  ll.]  On  Special  Agreements.  47 

took  the  Premises  was  informed  of  it,  and  that  he  re- 
nounced the  Tenancy,  and  entered  into  a  new  contract 
with  the  Person  under  whom  he  then  claims,  (u) 

All  these  matters  are  proveable  by  vivd  voce  Evidence. 

2.  Of  settling  the  Evidence  in  Actions  on  Special  Agree- 

i.  lents. 

1.  On  the  part  of  the  Plaintiff. 

Special  agreements  are  the  objects  of  this  Action  of 
Assumpsit,  and  such  agreements  may  be  either  verbal  or 
in  writing,  on  either  of  which  that  Action  is  maintainable, 
except  in  cases  under  the  Statute  of  Trauds,  on  which  no 
Action  can  be  brought  unless  they  are  in  writing.  These 
cases  are : — 1.  Where  it  is  to  charge  an  Executor  or  Ad- 
ministrator to  answer  damages  out  of  his  own  estate. — 
2.  To  charge  Defendant  for  the  debt,  default,  or  miscar- 
riage of  another. — 3.  Where  the  agreement  is  in  consi- 
deration of  Marriage. — 4.  Where  it  is  on  a  contract  for 
the.  sale  of  Lands,  Tenements,  or  Hereditaments,  or  any 
interest  in  them. — 5.  Where  the  agreement  is  not  to  be 
carried  into  effect  within  the  year. 

The  decisions  on  which  will  be  found  in  the  law  of 
Nisi  Prius,  as  referred  to  in  the  margin,  (x] 

Where  the  Action  is  on  a  special  agreement  -which  has 
been  reduced  into  writing,  it  is  first  necessary,  in  settling 
the  Evidence,  to  see  that  it  is  properly  stamped,  and  that 

(*0  2  Campb.  1 1.  (or)  Esp.  Dig,  N.  P.  123,  et  ultra. 


48  Of  the  Evidence  in  Actions        [CHAP.  II. 

is  necessary,  whether  the  agreement  is  specially  declared 
on,  or  it  is  a  Paper  to  be  given  in  Evidence,  in  any  way, 
in  support  of  the  agreement  on  which  the  Plaintiff  seeks  to 
recover. 

But  on  Agreements  in  these  cases  following  no  Stamp 
is  required,  (z) 

1.  If  the  Action  is  on  agreement  or  memorandum  for 
granting  a  Lease  at  rack  rent,  of  any  Lands  or  Tenements 
under  the  yearly  rent  of  51. 

2.  If  the  memorandum  or  agreement  is  for  the  hire  of 
any  labourer,  manufacturer,  or  menial  servant. 

3.  If  it  is  a  memorandum,  letter,  or  agreement  made 
for,  or  relating  to  any  sale  of  goods,  wares,  or  merchan- 
dise. 

4.  If  it  is  a  memorandum  or  agreement  made  between 
the  master  and  mariners  of  any  ship  or  vessel  for  wages, 
on  any  voyage  coastwise,  from  Port  to  Port  in  Great  Bri- 
tain. 

5.  On  any  letter  containing  any  agreement  in  respect  of 
any  merchandise,  or  evidence  of  such  an  agreement  as  shall 
pass  by  post,  between  merchants  and  other  persons,  car- 
rying on  trade  or  commerce  in  Great  Britain,  and  residing, 
and  actually  being,  at  the  time  of  sending  such  letters,  at 
the  distance  of  50  miles  from  each  other. 

6.  On  any  label  or  memorandum  containing  the  heads 

(z)  Vide  Stat.  48  Geo.  3.  149. 


CHAP.  II.]  On  Special  Agreements.  49 

of  insurance  to  be  made  by  the  Royal  Exchange  or  Lon- 
don Assurance  Company. 

In  all  these  cases,  any  paper  writing  relating  to  them 
may  be  given  in  Evidence  without  a  Stamp. 

Where  there  is  a  special  agreement,  and  the  Plaintiff 
seeks  to  recover  damages  for  the  breach  of  it ;  as  long  as 
it  is  executory,  (a)  that  is,  as  long  as  it  is  unperformed  in 
toto,  the  Plaintiff  is  bound  to  declare  on  it ;  but  if  it  has  been 
performed,  or  has  been  rescinded,  or  prevented  from  be- 
ing carried  into  effect  by  the  other  Party,  (6)  then  the 
Plaintiff  may  declare  generally,  and  give  the  written  In- 
strument in  Evidence  ;  as,  for  example,  if  a  Sailor  was  to 
enter  into  a  written  agreement  for  a  voyage,  and  the  Cap- 
tain refused  to  let  him  serve,  or  sailed  without  him,  (c)  by 
which  he  lost  the  whole,  or  any  part  of  the  voyage,  and  an 
Action  is  brought  by  the  Sailor,  the  Plaintiff  must  declare 
on  the  agreement,  and  go  for  the  special  loss :  but  if  he  had 
performed  the  voyage,  he  might  declare  generally  for  work 
and  labour. 

1.  If  the  Declaration  is  special  on  the  agreement. 

In  settling  Evidence  in  Actions  on  special  agreements, 
where  the  Plaintiff'  declares  on  the  agreement,  great  care  is 
required  ;  (d)  every  averment  in  the  Declaration  must  be 
proved  precisely  as  averred  in  it,  and  the  smallest  varia- 

(a)  Esp.  Dig.  N.  P.  160.  Doug!.  24.  1  Term  Rep.  134. 
(A)  2  East.  147.  7  Term  Rep.  181. 
(c)  Per  Eyre  C.  J.   1  Bos.  &  Pull.  397, 
fd)  Esp.  Di^.  N.  P.  16?. 


50  Of  the  Evidence  m  Actions         [CHAP.  II. 

tion  in  a  material  part  is  fatal, (e)  This,  in  the  case  of  spe- 
cial agreements  which  have  not  been  reduced  into  writing, 
often  happens ;  but,  when  the  agreement  is  in  writing, 
as  the  Declaration  is  drawn  from  it,  there  is  little  danger  of 
a  variance  in  proving  the  contract  to  be  as  laid  in  the  De- 
claration; the  failure,  in  that  case,  can  only  take  place  where 
there  is  a  failure  of  proof  of  the  breach  :  If  the  contract  or 
agreement  is  by  parol,  there  is  danger,  not  only  as  to  proof 
of  the  agreement,  but  also  of  the  breach. 

1.  At  the  Trial,  the  course  of  Evidence  is  this :  the 
agreement,  if  in  writing,  must  be  produced  ;  and  if  there 
be  a  subscribing  witness  to  it,  he  must  be  called  to  prove  it. 

If  the  agreement  was  by  parol,  a  witness,  who  was  pre- 
sent at  the  making  of  it,  must  be  called  to  prove  what  it 
was ;  in  both  cases  the  agreement  produced,  or  that  which 
is  so  proved  by  a  witness,  must  be  found  to  correspond 
with  that  laid  in  the  Declaration  ;  if  it  does  not,  the  Plain- 
tiff' will  be  nonsuited. 

Thus,  for  example,  where  the  Plaintiff  declared  on  an 
agreement  "  to  deliver  40  sacks  of  corn  on  a  particular 
day,"  and  the  agreement  was  proved  to  be  40  or  50 ;  that 
was  held  to  be  a  clear  variance,  (f) 

2.  Having  proved  the  agreement,  the  next  piece  of  Evi- 
dence which  the  Plaintiff  must  give,  is,  in  case  any  thing 
was  to  be  previously  done  by  himself,  to  prove  that  he  has 
done  it. 

As  if  the  Plaintiff  declared  on  a  breach  of  an  agreement, 
(e)  4  Taunt.  285.  (/)  Perry  v.  Porter,  2  East.  2. 


CHAP.  II.]  On  Special  Agreements.  51 

by  which  the  Defendant  promised  to  pay  him  a  sum  of 
money  in  consideration  of  his  executing  to  him  a  general 
release,  the  Plaintiff  must  aver  and  prove,  that  he  either  did 
execute  such  a  release,  or  was  ready  to  do  so ;  for,  until 
he  does  so,  he  has  no  cause  of  Action,  (g] 

The  best  direction  on  this  point,  is  to  observe  carefully 
the  averments  in  the  Declaration ;  for,  unless  all  that  is 
necessary  to  give  the  Plaintiif  a  right  of  Action  tinder  the 
agreement,  is  averred  in  it,  the  Judgment  will  be  arrested 
if  the  Plaintiff  has  a  verdict,  and  all  these  must  be  proved. 

But,  in  some  cases,  the  Plaintiff  must  go  further  than 
averring  a  performance,  or  readiness  to  perform  his  part ; 
he  must  show  that  he  had  a  right  to  do  that  which  he  pro- 
mised, and  which  is  the  foundation  of  the  Defendant's  pro- 
mise :  as,  if  he  declares  on  the  Defendant's  promise  to  pay 
a  sum  of  money  on  the  assignment  of  a  Lease,  he  must  give 
Evidence  of  his  title  to  the  Lease,  (h] 

3.  The  third  matter  of  Evidence  which  the  Plaintiff 
must  prove  is,  the  breach  by  the  Defendant.  Thus,  if  the 
Defendant  was  to  build  a  house  for  the  Plaintiff  by  a  cer- 
tain day,  he  should  call  a  witness  to  prove  that  no  house 
was  built ;  but  this  Evidence  is  unnecessary,  where  it  lies 
on  the  Defendant  to  prove  performance  of  his  part ;  as  if 
the  Declaration  was  an  agreement  that  the  Defendant  was 
to  pay  100  /.  on  the  Delivery  of  50  quarters  of  Corn  at  a 
particular  place.  It  is  sufficient  for  the  Plaintiff  to  prove 
the  delivery  at  the  place,  and  it  lies  on  the  Defendant  to 
prove  the  payment. 

(S]  2  Burr.  899.  (A)  Dougl.  598.  2  Marsh.  Rep.  332. 


52  Of  the  Evidence  in  Actions         [CHAP.  II. 

4.  The  last  piece  of  Evidence  required,  on  the  part  of 
the  Plaintiff,  is  of  the  Damages.  These  are  either  general 
or  special,  as  laid  in  the  Declaration,  and  are  either  liqui- 
dated or  unliquidated.  If  the  agreement  states  the  sum 
agreed  on  as  damages  for  the  breach  of  it,  the  Plaintiff  can 
only  recover  the  amount,  and  nothing  more  is  required  than 
to  prove  the  agreement  and  breach ;  but  if  no  sum  is  spe- 
cified, so  that  the  damages  are  unliquidated,  then  the  Plain- 
tiff must'  prove  the  damages,  as  laid  in  the  Declaration,  to 
such  an  extent  as  he  can. 

Thus,  for  example,  if  Plaintiff  declares  on  a  breach  of 
agreement  by  the  Defendant  to  deliver  certain  goods  by  a 
particular  day,  and  then  avers  as  special  damage  "  that 
he  was  deprived  of  the  opportunity  of  selling  them  to  ad- 
vantage," he  may  give  in  Evidence,  that  a  particular  per- 
son would  have  purchased  them  at  an  advanced  price,  and 
call  that  person  to  prove  it,  or  that  there  was  a  considerable 
rise  in  the  market  for  such  goods,  and  where  he  could  have 
sold  them  to  advantage ,  and  then  what  he  lost  on  the  Sale, 
he  may  recover  in  damages. 

2  If  the  Declaration  is  general. 

If  it  is  for  work  and  labour,  or  money  had  and  received 
generally,  though  founded  on  the  agreement :  the  Plaintiff, 
in  that  case,  must  be  prepared  to  prove  the  agreement,  and 
also  where  any  thing  is  to  be  previously  done  by  himself,  to 
prove,  that  it  has  been  performed  by  him  in  all  respects ; 
as,  e.  g.  if  the  Plaintiff  was  to  receive  a  sum  of  money  on 
doing  certain  work  by  a  certain  time ;  (i)  when  he  has  done 

(0  Poulter  v .  Killingbeck,  1  Bos.  8c  Pull,  397. 


CHAP.  II.]          On  Special  Agreements.  53 

it,  he  may  declare  generally  for  work  and  labour,  and  give 
the  agreement  and  proof  of  his  performance  in  Evidence 
under  such  Count. 

So  he  may  declare  generally  on  these  Counts,  if  the 
agreement  has  been  rescinded,  or  if  the  Defendant  is  unable 
to  perform  what  he  undertook,  or  by  his  own  act  has  pre- 
vented the  Plaintiff  from  doing  his  part :  in  all  which  cases, 
the  Plaintiff  must  prove  the  agreement  and  the  facts  stated. 

Thus,  if  the  Action  is  to  recover  a  deposite  made  on  a 
Sale  of  goods  by  Auction,  where  the  Auctioneer  is  unable 
to  deliver  the  things  sold ;  or  if  made  on  the  Sale  of  an  Es- 
tate, the  title  to  which  is  defective,  so  that  the  Buyer  is 
not  compellable  to  complete  the  purchase,  or  the  Seller  is 
unable  to  complete  it  within  the  time  specified ;  in  all 
those  cases,  the  Plaintiff  may  declare  for  money  had  and 
received,  and  at  the  Trial  must  prove  the  Sale  by  Auction : 
the  particulars  delivered  by  the  Auctioneer  :  that  he  was 
declared  the  best  Bidder,  and  that  he  paid  the  sum  for 
which  the  Action  is  brought,  as  a  deposite  :  this  is  usually 
done  by  the  Auctioneer's  receipt  and  proof  of  his  hand- 
writing. The  Particulars  are  sufficient  Evidence  of  the 
terms  of  the  Sale ;  and  if  they  are  not  complied  with  on 
the  part  of  the  Auctioneer,  the  Party  has  an  immediate 
right  to  recover  his  deposite  by  the  Action  for  money  had 
and  received  ;  but  if  the  thing  sold  was  to  be  delivered  by 
a  given  time,  or  a  good  title  shown  to  an  Estate  sold  with- 
in a  given  period,  the  Plaintiff  should  prove  that  he  appli- 
ed for  the  thing  sold,  or  an  abstract  of  the  title  to  the  Es- 
sate  at  the  time  specified  in  the  Particular,  and  that  he 
could  obtain  neither.  So  if  he  discovers  that  the  Seller  had 
no  title  to  what  the  Auctioneer  sold,  as  if  the  Auctioneer 


54  Of  the  Evidence  in  Actions        [C  HA  p.  II. 

furnished  an  abstract  to  the  Seller's  title  to  the  Estate  sold 
by  Auction,  and  it  appears  on  the  face  of  it  that  the  title  is 
bad,  the  Buyer  may  sue  for  and  recover  his  deposite. 

2.  Of  the  Evidence  for  the  Defendant  in  Actions  on  Special 
Agreements. 

The  best  positive  Evidence,  in  answer  to  the  Plain- 
tiff's case,  which  the  Defendant  can  give,  is  perform- 
ance, or  that  he  was  willing  to  perform  his  part,  and  offered 
to  do  it ;  and  that  the  Plaintiff  refused  to  receive  it ;  as 
if  the  Action  was  grounded  on  the  non-performance  by  the 
Defendant  of  an  agreement,  by  which  the  Defendant  was 
to  assign  a  Lease  to  the  Plaintiff,  and  which  the  Plaintiff 
refused  to  accept  of  on  the  ground  of  a  want  of  title  ;  the 
Defendant  may  go  into  Evidence  to  show  that  he  had  a 
good  title ;  and  if  he  had,  the  Plaintiff  had  no  right  of 
Action. 

So  if  the  Plaintiff  declares  generally,  and  there  is  a 
special  agreement.  As  the  Plaintiff  should  declare  on  the 
agreement  as  long  as  it  is  executory;  by  showing  the  agree- 
ment, the  Defendant  will  nonsuit  the  Plaintiff;  but,  as  has 
been  before  observed,  the  Plaintiff  may  show,  that  the 
agreement  was  rescinded  or  performed  on  his  part. 

So  if  the  Plaintiff  declares  for  non-performance  of  an 
agreement,  the  Defendant  may  show  that  he  was  prevented 
from  performing  it  by  the  Plaintiff  himself;  as  if  the  De- 
fendant was  to  finish  a  house  for  the  Plaintiff  by  a  given 
time,  the  Plaintiff  finding  timber,  Defendant  may  show  that 
the  Plaintiff  refused  to  do  so. 


CHAP.  II.]  Arising  on  Sales.  55 

3.   Of  settling  the  Evidence  in  Actions  ofAssumpsit  on  con- 
tracts of  Sale. 

These  Actions  are, — 1.  For  the  price  of  the  things  sold, 
which  is  recovered  under  the  Count  for  goods  sold  and  de- 
livered ;  or,  2.  To  recover  back  the  price  paid  for  the  thing 
sold,  by  reason  of  the  defect  of  tide  in  the  Seller ;  or  of 
Fraud  in  the  Sale  ;  as,  by  a  false  warranty  respecting  it ; 
or,  3.  To  recover  special  damages  for  the  non-delivery 
of  it. 

The  first  of  these  Actions,  as  it  falls  under  the  head  of 
Assumpsit  for  goods  sold  and  delivered ;  how  the  Evidence 
as  to  it  is  to  be  settled,  will  be  treated  of  under  that  general 
head  hereafter. 

2.  The  second  of  these  heads  is  Assumpsit  for  money 
had  and  received,  (j)  This  Action  is  maintainable  where 
there  has  been  any  Fraud  in  the  sale  by  the  Seller,  and  the 
Buyer  has  paid  his  money  as  the  price  of  the  thing  bought ; 
he  may,  in  that  case,  return  the  thing  bought  to  the  Sel- 
ler, and  declare  so  in  this  Action  to  recover  back  his  mo- 
ney. 

As  if  a  Horse  be  warranted  sound,  which  proves  to  be 
unsound :  merchandise  warranted  to  be  of  a  particular 
quality  or  description,  which  turns  out  to  be  otherwise, 
and  the  Buyer  has  paid  for  it ;  on  returning  the  Horse  or 
the  goods,  the  law  gives  him  the  remedy,  by  Assumpsit 
for  money  had  and  received,  to  recover  back  the  money  he 
so  paid. 

O')  l  Esp.  Dig.  N.  P.  13. 


56  Of  the  Evidence  in  Actions         [CHAP  II. 

When  the  Action  is  so  brought,  .the  contract  of  Sale 
must  be  at  an  end,  or  rescinded,  and  these  facts  must  be 
proved  at  the  Trial;  the  Plaintiff  must  first  prove  the  con- 
tract of  Sale,  and  the  price  paid. — 2.  The  warranty  or  re- 
presentation of  the  thing  sold  given  at  the  time  of  Sale. — 
3.  That  the  warranty  or  representation  so  made  was  un- 
true, and  falsify  it  by  calling  witnesses  to  prove  it  to  be  so ; 
and,  lastly,  the  Plaintiff  must  prove  that  the  contract  was 
rescinded  or  at  an  end,  that  is,  that  he  either  returned  the 
things  sold  or  offered  to  do  so,  and  that  the  Defendant  ei- 
ther received  them  back,  or  refused  to  accept  of  them. 

Thus,  in  the  case  of  AssumjiHt,  to  recover  back  the 
price  of  a  Horse  warranted  soun-d,  the  Plaintiff  must  prove 
the  Sale,  and  that  at  the  time  of  the  Sale  the  Horse  was 
warranted  sound,  and  the  price  he  paid ;  he  should  then 
call  witnesses  to  prove  that  the  Horse  was  unsound ;  and, 
lastly,  that  he  either  returned  him  to  the  Defendant,  or  of- 
fered to  do  so,  and  that  the  Defendant  refused  to  accept  of 
him. 

In  these  cases,  (k)  the  receipt  for  the  price  usually  spe- 
cifies the  sum  as  paid  "  for  a  Horse  warranted  sound"  and 
that  receipt  is  received  as  sufficient  Evidence  of  the  war- 
ranty, as  well  as  of  the  payment  of  the  money  by  the  Plain- 
tiff to  the  Defendant ;  so  that,  on  proving  the  Defendant's 
hand-writing  to  the  receipt,  the  Plaintiff  is  only  required 
further  to  prove  the  unsoundness  of  the  Horse,  the  return 
or  an  offer  to  return  him,  and  the  Defendant's  refusal  to 
receive  him. 

(*)  1  Campb.  387. 


CHAP.  II.]  Arising  on  Sales.  57 

It  is  also  necessary  to  attend  to  the  circumstances  under 
which  Sales  take  place ;  as  Sales  by  sample  or  written  con- 
tract ;  or  Sales  by  the  intervention  of  a  Factor  or  Broker  : 
as  the  Evidence  varies  accordingly,  and  must  be  therefore 
attended  to. 

When  the  Sale  is  by  sample,  (/)  the  bulk  delivered  must 
correspond  with  the  sample,  or  the  Sale  is  void,  for  it  is 
a  Fraud  on  the  Buyer.  In  every  case  of  this  description, 
the  Plaintiff  should  be  prepared  with  a  witness  to  prove, 
that  the  sample  sold  by,  was  fairly  taken  from  the  bulk, 
and  should  have  some  to  produce  in  Court,  to  show  that 
they  correspond.  This  Evidence  is,  however,  not  required 
unless  the  Defendant  rests  his  defence  on  that  ground : 
otherwise  the  only  Evidence  which  is  required  of  the 
Plaintiff  is  of  the  general  sale  and  delivery  of  the  goods. 

If  the  Defendant  sets  up  that  defence,  that  the  sample  dif- 
fers from  the  bulk,  he  must  produce  the  sample  given  at 
the  time  of  the  Sale,  and  prove  it  to  be  that  which  was  so 
given.  He  should  then  produce  part  of  the  bulk  deliver- 
ed, and  prove  that  it  was  fairly  taken  :  he  should  then  call 
witnesses  acquainted  with  the  article  sold,  who  will  state 
their  opinion,  as  to  their  not  being  of  the  same  quality  or 
description,  and  if  they  are  believed,  the  Plaintiff  must  fail. 
It  is  obvious,  therefore,  that  where  this  defence  is  expect- 
ed, the  Plaintiff  must  be  prepared  to  show  that  they  are 
the  same,  by  similar  Evidence. 

If  the  Sale  is  by  written  contract^  (m}  the  delivery  and 
description  of  the  things  sold  must  accurately  correspond 

(0  2  East.  314.  (m)  3  Campb.  462. 

H 


58  Of  the  Evidence  in  Actions       [CHAP.  II. 

with  the  contract,  nor  will  it  be  considered  as  an  answer, 
to  the  goods  delivered  not  agreeing  with  the  contract,  that 
the  Plaintiff  had  a  sample  also  after  the  contract  made,  and 
was  satisfied  with  it. 

When  the  Sale  is  by  the  intervention  of  a  Broker,  or 
Agent,  by  whom  the  bargain  is  made,  he  is  a  good  witness 
for  either  side,  and  he  should  be  called,  (n) 

Another  class  of  cases  ranging  under  this  head,  are 
those  of  Sales  by  Auction.  Assumpsit  for  money  had  and 
received  being  the  proper  form  of  Action  to  recover  back 
a  deposite  made  on  such  Sale,  as  on  the  Sale  of  an  Estate, 
for  example,  where  it  turns  out,  that  the  Seller  had  no  title 
to  the  thing  sold,  or  was  not  prepared  to  complete  the  pur- 
chase at  the  time  specified  in  the  particulars  of  Sale. 

The  Evidence  required,  in  this  case,  has  been  before 
mentioned  in  page  52. 

3,  The  third  description  of  cases  arising  on  Sales  differs 
from  the  second  in  this,  that  that  is  indebitatus  assumpsit, 
being  to  recover  back  money  paid :  this  is  Assumpsit  ge- 
nerally, and  the  Plaintiff  seeks  in  the  latter  Action  to  re- 
cover special  damage  by  reason  of  the  Defendant  not 
performing  his  contract  of  Sale,  and  that  must  be  laid  in 
the  Declaration.  Thus,  for  example,  in  the  last  case,  of 
the  Sale  of  an  Estate  by  Auction,  if  the  Plaintiff  declares 
in  indebitatus  assumpsit,  generally,  for  money  had  and  re- 
ceived, he  can  recover  his  deposite  only;  but  if  he  declares 
on  the  contract  of  Sale  made  "by  the  Defendant,  by  which 

(n}  3  Wils.  40. 


CHAP.  I!.]  Arising  on  Sales.  59 

he  was  declared  the  best  Bidder  at  the  Auction,  and  in 
consequence  paid  his  deposite,  pursuant  to  the  particu- 
lars, he  may  go,  after  assigning  the  breach  of  performance 
by  the  Defendant,  for  special  damage,  as,  that  he  was  put 
to  great  expense  in  examining  the  title,  in  journeys  un- 
dertaken on  account  of  the  Estate,  and  for  the  interest  of 
money ;  and  then,  having  proved  the  several  matters  stated 
In  that  case,  (page  52)  he  may  go  into  Evidence  of  these 
facts  of  special  damage  distinctly,  and  he  can  recover  da- 
mages accordingly,  but  they  must  be  stated  in  the  De- 
claration. 

4.   Of  settling  the  Evidence  under  the  common  Counts  in 
Assumpsit. 

I  shall  now  consider  the  rules  to  be  observed  in  the  set- 
tling of  Evidence  on  the  common  Counts  of  Assumpsit, 
as  far  as  .it  respects  general  principles,  the  particular  cases 
which  occur  being  too  numerous  to  find  a  place  here :  but 
it  will  be  here  necessary  to  state  a  few  of  them  by  way  of 
example,  to  point  out  how  Evidence  is  to  be  settled  in  si- 
milar instances.  These  Counts  are  in  Assumpsit, — 1.  For 
money  had  and  received. — 2.  For  money  lent  and  ad- 
vanced.— 3.  For  money  paid  to  the  Defendant's  use.— 4* 
For  work  and  labour. — 5.  For  goods  sold  and  delivered ; 
and,  lastly,  on  an  Account  stated, 

1.  Of  the  Evidence  on  the  Count  in  Assumpsit  for  mo- 
ney had  and  received. 

This  is  a  very  general  head,  and  lies  in  every  case  in 
which  a  person  has  received  or  obtained  possession  of  the 
money  of  others,  which  he  has  retained  or  not  paid  over,  and 


* 

60  Of  the  Evidence  in  Actions         [CHAP.  IL 

which  he  has  no  legal  title  to  keep  :  the  cases  arising  un- 
der it  must  be,  therefore,  as  various  as  are  human  trans- 
actions, and  connected  with  the  receipt  or  payment  of 
money.  The  general  rule,  therefore,  as  to  settling  the 
Evidence,  to  enable  the  Plaintiff  to  recover  on  this  Count 
is,  that  he  must  give  the  whole  transaction  in  Evidence ;  i.  e. 
he  must  prove  the  circumstances  under  which  the  Defend- 
ant received  or  got  possession  of  the  money,  the  amount, 
and  then  prove  that  he  has  no  right  to  keep  it,  but  that  it 
belongs  to  the  Plaintiff,  who  ought  to  receive  it.  I  shall 
exemplify  this  general  position  by  cases  which  range  under 
the  different  grounds  of  this  head  of  Assumpsit,  which  re- 
quire no  Evidence  of  any  promise  on  the  Defendant's  part 
to  pay,  but  are  founded  on  equitable  claims  on  the  Plain- 
tiff's part,  which  the  law  raises  in  his  favour. 

1.  The  Plaintiff  may  under  this  Count  recover  money 
paid  to  the  Defendant,  (0)  where  the  consideration  for 
•which  he  paid  it  has  faikd,  and  for  which  the  Defendant 
received  it.  (p)  Thus,  where  money  was  paid  by  the 
Plaintiff  to  the  Defendant,  as  the  price  of  an  Annuity 
granted  to  him  by  the  Defendant,  and  the  latter  set  the 
Annuity  aside  :  the  Plaintiff  recovered  back  the  money 
for  it  was  unjust  that  the  Defendant,  should  keep  the  money 
paid  for  the  Annuity,  when  it  had  been  set  aside  by  the 
Defendant  himself. 

In  such  a  case,  it  would  be  necessary  for  the  Plaintiff 
to  prove  the  execution  of  the  Annuity  Deed  by  the  Defen- 
dant to  him,  by  calling  the  subscribing  witness :  the  pay- 
ment of  the  consideration  would  be  also  necessary  to  be 
proved ;  but  that  would  appear  by  the  consideration  being 

(o)  1  Esp.  Dig.  N.  P.  2. '  (/i)  1  Term  Rep.  732.  6  East.  241. 


CHAT.  II.]         Of  Assumpsit  for  Money  paid.  61 

recited  in  the  Deed  and  the-  Receipt  indorsed,  to  which 
the  Defendant's  hand- writing  should  be  proved.  It  would 
then  be  necessary  to  prove  that  the  Annuity  was  set  aside 
by  the  Court,  and  the  Rule  obtained  by  the  Defendant 
for  that  purpose  should  have  been  produced,  and  P>i- 
clence  given  that  it  was  obtained  by  him :  this  may  be 
done  by  producing  an  Office  copy  of  the  Rule  obtained, 
and  the  Affidavit  on  which  it  was  obtained.  It  will 
appear,  by  the  Rule  being  made  absolute  for  setting  it 
aside,  that  the  Plaintiff  could  not  recover  any  future  arrears 
of  the  Annuity  for  which  he  had  paid  his  money,  and  that 
Defendant  therefore  could  have  no  title  to  keep  it. 

In  settling  the  Evidence  therefore,  where  the  cause  of 
Action  arises  from  the  consideration  having  failed  on 
which  the  Plaintiff  paid  his  money,  the  consideration  must 
be  proved;  and  in  doing  so,  it  must  be  observed,  that  if 
it  was  founded  on  any  written  contract  or  agreement,  the 
writing  must  be  produced  and  proved :  if  it  was  by  parol 
only,  it  may  be  proved  by  a  witness. 

Thus,  e.  g.  if  the  Plaintiff  had  paid  to  the  Defendant  a 
sum  of  money  in  the  presence  of  a  witness,  in  considera- 
tion of  the  Defendant's  resigning  to  him  a  certain  Place  or 
Situation,  but  which  it  was  found  afterwards  the  Defen- 
dant would  not  be  permitted  to  resign,  or  had  no  right  to 
sell ;  the  Plantiff  may  recover  his  money  back  by  calling 
the  witness  to  the  transaction,  and  showing  that  the  Defen- 
dant had  not  put  him  into  the  possession  of  the  Place  for 
which  he  had  paid  his  money. 

But  if  the  transaction  arose  on  matter  wherein  there 
was  any  written  Instrument  connected  with  it,  that  Instru- 
ment must  be  produced. 


ft 

* 

Of  the  Evidence  in  Assumpsit.      [CHAP.  IL 

As  if  the  Plaintiff  had  discounted  a  Navy  or  other  Bill 
for  the  Defendant,  which  turned  out  to  be  forged,  and  he 
brings  his  Action  to  recover  the  amount  paid,  (q)  he  can- 
not recover  by  parol  Evidence,  that  there  was  such  a 
transaction,  without  producing  the  Bill,  or  at  least  showing 
that  it  was  lost.  The  course  of  Evidence  therefore  for 
the  Plaintiff  in  that  case,  or  in  similar  ones,  necessarily  is 
this  :  to  produce  the  Bill  :  to  prove  that  he  received  it 
from  the  Defendant  for  whom  he  discounted  it,  and  that 
he  paid  him  on  that  account  £  .  He  must  then  prove 
that  the  Bill  is  forged,  by  calling  witnesses  who  are  ac- 
quainted with  the  character  or  hand  subscribed  to  the 
Bill,  or  from  some  mark  on  the  Bill  which  enables  them 
to  swear  that  it  is  forged.  If  it  is  a  private  person's  Bill, 
persons  acquainted  with  his  character  and  hand-writing 
must  be  called.  If  it  is  a  public  document,  it  is  proved  to 
be  a  forgery,  by  calling  a  Clerk  from  that  Office  from 
whence  the  Instrument  or  Bill  purports  to  have  issued, 
whose  business  it  is,  to  be  acquainted  with  the  signature 
of  those  whose  department  it  is  to  sign  such  Instruments 
or  Bills,  or  who  are  acquainted  with  the  private  marks 
affixed  to  them,  which  enables  them  to  detect  forgeries. 

2.  If  a  person  has  paid  money  to  another  by  mistake, 
on  discovering  the  error,  he  may  recover  it  back  under 

the  Count  for  money  had  and  received,  (r) 

• 

Where  the  Action  is  brought  to  recover  money  so  paid, 
(s)  the  Plaintiff  must  go  into  Evidence  of  the  whole 
transaction,  and  the  circumstances  under  which  he  paid  it  j 

(?)  5  Taunt.  488. 

(r)  I  Esp.  Dig.  N.  P.  3. 

(«)  I  Term  Rep.  343.  3  Maule  and  Selw.  344, 


CHAP.  II.]        for  Money  paid  and  expended.  63 

and  it  must  be  clearly  made  out,  that  the  payment  was 
made  in  consequence  of  the  Plaintiff  supposing  something 
to  have  taken  place,  or  some  fact  to  have  happened, 
which  turns  out  to  be  otherwise  than  he  supposed ;  as  if 
an  underwriter  supposing  a  Ship  to  be  lost,  on  which  he 
had  underwritten  a  Policy,  has  paid  as  for  a  total  loss,  and 
she  afterwards  returns  to  Port ;  he  has  a  right  to  recover 
back  his  money,  he  having  paid  it  under  a  belief  that  the 
Ship  had  been  lost. 

In  this  case  as  in  the  preceding  one,  where  the  demand 
is  connected  with  any  Instrument  or  Writing,  it  must  be 
produced  :  it  would  therefore,  in  that  case,  be  necessary 
for  the  Plaintiff  to  produce  the  Policy,  to  prove  the  adjust- 
ment of  it,  and  the  payment  by  him  made  thereon,  as 
settled  for  a  loss  by  perils  of  the  Sea,  and  that  he  paid  the 
amount  to  the  Defendant. 

The  other  grounds  of  Action,  on  this  Count,  will  be 
found  at  length  in  all  treatises  on  the  laws  of  Nisi  Prius.  (t) 
It  lies  to  recover  back  money  extorted  or  obtained  by 
oppression :  paid  to  a  person  acting  under  a  void  authori- 
ty :  money  embezzled  or  obtained  by  cheating,  or  given 
to  be  applied  to  an  illegal  purpose  :  in  all  these  cases,  the 
rules  just  laid  down  in  the  two  instances  given,  are  in  every 
respect  applicable  ;  that  is,  the  whole  transaction  must  be 
proved ;  and  if  it  has  arisen  from  the  intervention  of  any 
Instrument  in  writing,  it  must  be  produced  and  proved, 
as  no  parol  Evidence  of  it  can  in  such  case  be  admitted. 

One  caution  is,  however  to  be  strictly  attended  to  in  this 
Action  ;  (u)  that  it  must  appear  that  the  Plaintiff  did  not 

(0  Esp.  Dig.  N.  P.  3.  et  ultra. 

(«)  I  Esp.  Dig.  N.  P.  119.  1  Esp.  N.  P.  C.  279.  7.  East.  269. 


64  Of  the  Evidence  m  Assumpsit    J^CHAP.  II. 

pay  to  the  Defendant  the  money  voluntarily  ;  as  if  he  did, 
though  he  might  have  resisted  the  payment  with  effect,  he 
cannot,  after  so  voluntarily  paying  it,  recover  it  back,  for 
that  would  tend  to  circuity  of  Actions. 


2.  Of  settling  the  Evidence  on    the  general  Count  for 
money  paid,  laid  out,  and  expended  to  Defendant's  use. 

The  next  head  of  Evidence  respects  this  head,  as  to 
which  the  general  rule  just  laid  down  with  equal  force 
applies  ;  that  no  man  can,  of  his  own  head,  pay  money  on 
the  account  of  another,  so  as  to  make  it  a  ground  of 
Action,  unless  it  has  been  paid  at  his  request :  by  his 
direction  :  or  is  money  which  he  is  compellable  by  law  to 
pay  on  Defendant's  account,  by  reason  of  some  legal  pro- 
ceedings, or  some  legal  claim  or  demand,  which  he  could 
not  resist. 

It  will  therefore  not  entitle  the  Plaintiff  to  recover  in 
this  Action,  to  prove  a  payment  made  by  him  on  account 
of  the  Defendant ;  he  must  go  further,  and  show  a  request, 
or  order  by  the  Defendant  to  do  so,  which  may  be  done, 
either  by  a  witness,  or  by  writing. 

Or  he  may  give  in  Evidence,  that  he  was  compelled  by 
law  to  pay  it. 

As  where  an  under  Tenant's  goods  are  distrained  on 
account  of  Rent  due  to  the  head  Landlord,  and  to  redeem 
his  goods,  he  pays  the  rent  in  arrear ;  on  proving  the 
distress  made  :(x)  the  taking  of  his  goods  :  that  it  was 

(JT)  8  Term  Rep.  308. 


CHAP.  II.]  for  Money 'lent.  65 

for  Rent  due  by  the  Defendant,  and  that  he  to  redeem  his 
goods  paid  the  Rent  due  by  the  Defendant ;  all  of  which 
may  be  proved  by  the  head  Landlord,  or  the  Broker  he  has 
employed :  the  Plaintiff  may  recover  the  whole  money 
so  paid. 

Under  this  head  falls  the  case  of  payment  of  money  by 
Sureties  for  their  Principal,  as  under  Bonds  or  Recogni- 
zances, (y]  A  surety,  who  pays  the  whole  sum  for  which 
he  was  jointly  bound,  may  recover  the  whole  against  the 
principal,  or  a  proportionate  part  from  his  co-security. 

This  head  is  more  fully'treated  of  post,  pag.  70. 
3.  Of  the  Evidence  on  the  Count  for  money  lent. 

It  is  necessary  to  observe  on  this  Count,  that  the  mere 
proof  of  the  Defendant  receiving  a  sum  of  money  from 
the  Plaintiff  will  not  support  this  Count ;  the  money  must 
be  proved  to  have  been  advanced  to  him  as  a  loany  for 
otherwise  it  is  open  to  the  presumption,  that  it  was  given 
for  some  other  purpose.  This  is  provable  either  by  a 
witness,  or  by  letter  or  other  writing,  or  by  a  Promissory 
Note ;  all  of  which  are  good  Evidence  under  this  Count, 
on  proving  Defendant's  hand-writing. 

4.  Of  settling  the  Evidence  on  the  Count  for  goods  sold 
and  delivered. 

To  support  this  Count,  as  in  the  last,  the  proof  of  the 

(y)  Per  Buller,  J.  2  Term  Rep.  105. 
T 


66  Of  the  Evidence  in  Assurnpsit        [CHAP.  II. 

« 

mere  delivery  of  Goods  to  the  Defendant  by  the  Plaintiff, 
is  not  sufficient,  without  Evidence  of  a  contract  of  Sale. 
To  support  this,,  however,  the  Plaintiff  is  not  called  upon 
to  prove  an  actual  bargain  for  the  specific  goods  for  which 
the  Action  is  brought ;  it  will  be  sufficient  to  prove  a 
dealing  in  the  way  of  the  trade  or  business  of  the  parties  : 
as  if  a  Factor  delivers  goods  to  a  Defendant  in  which  he 
deals  as  a  merchant  or  shopkeeper,  a  sufficient  presump- 
tion is  thereby  raised,  that  they  were  sold  to  him,  and 
that  he  is  liable  ;  evidence  therefore  to  that  effect  is  suffi- 
cient :  but  if  there  is  no  such  connection  in  their  dealing, 
the  Plaintiff  must  show  an  order  or  contract  for  them,  as 
well  as  a  delivery  of  them  to  th'e  Defendant. 

This  is  matter  of  Evidence  as  to  the  contract  or  order, 
and  may  be  proved  either  by  writing  or  parol ;  the  fact  of 
the  delivery  must  be  proved  by  witnesses,  and  the  value 
of  the  goods  delivered,  by  similar  proof. 

As  it  is  essential  to  prove  the  delivery  of  the  thing  sold 
to  the  Buyer,  [z]  these  points  of  Evidence  are  to  be  at- 
tended to. — 1.  A  delivery  to  the  Buyer  himself,  or  at  his 
own  house,  is  in  all  cases  sufficient. — 2.  A  delivery 
according  to  his  order  is  good  if  the  order  is  produced  or 
proved,  and  the  delivery  of  the  goods  proved  pursuant  to 
it,  as  to  be  sent  by  a  particular  Stage  coach  or  Wagon, 
or  left  at  a  particular  place,  (a) — 3.  Where  the  Buyer  or 
Seller  lives  at  a  distance,  and  the  former  orders  goods  to 
be  forwarded  to  him,  it  is  implied  that  they  are  to  be  sent 
by  the  conveyance  or  carrier  known  to  be  so  employed, 

(z)  lEsp.  Dig.  N.  P.  18. 
(a)  Cowp.  294. 


CHAP.  II.]     for  Goods  sold  and  delivered.  67 

and  the  proof  of  the  delivery  of  the.goods  to  him  is  suffi- 
cient to  charge  the  Buyer,  (b] 

This  being  a  general  head  it  may  be  proper  to  advert 
to—- 

The  Evidence  for  the  Defendant  under  the  Action  for 
goods  sold. 

The  Defendant  may,  in  answer  to  the  Plaintiff's  Action, 
show  that  the  Goods  were  sold  on  credit,  and  that  the  Ac- 
tion was  brought  before  the  credit  expired.  To  prove 
the  commencement  of  the  Action  where  he  relies  on  this 
defence,  he  should  have  an  examined  copy  of. the  writ,  or 
the  copy  served  on  himself,  or  the  writ  itself ;  but  if  the 
suit  was  commenced  by  Bill,  if  the  credit  expired  before 
Defendant  filed  it,  it  will  be  sufficient  to  entitle  the  Plain- 
tiff to  recover. 

So  the  Defendant  may  give  in  Evidence,  that  the  goods 
were  not  such  as  he  had  ordered,  and  that  he  offered  to 
return  them ;  that  they  were  of  inferior  value  to  what  they 
are  charged ;  that  they  were  damaged  or  worth  nothing. 
This  is  matter  of  fact  to  be  proved  by  witnesses. 

5.   Of  the  Evidence  on  the  Count  for  Work  and  Labour. 

In  this  case  it  has  been  laid  down,  that  what  is  done  by 
anyone,  in  the  course  of  his  profession,  trade,  or  business, 
is  presumed  to  be  done  with  a  view  to  payment,  and  that 
the  person  doing  it  may  recover  an  adequate  compensation 
or  reward :  in  such  case  it  will  be  sufficient  to  show  that 

(A)  3  Bos.  &  Pul.  582.  2  Camp.  36,  639. 


68  Of  the  Evidence  in  Assumpsit       [CHAP.  II. 

he  was  so  employed,,  without  proving  any  express  pro- 
mise to  pay  him  ;  but  where  what  is  done  has  no  connec- 
tion with  the  Party's  business ;  an  express  employment 
must  be  proved  on  the  terms  of  being  paid,  the  law  being 
clear,  that  no  man  can  make  another  his  debtor  without 
his  consent,  and  that  no  man  shall  seek  for  payment  for 
what  he  at  first  gratuitously  undertook  without  the  view 
of  being  paid  for. 

In  settling  the  Evidence  therefore  on  this  Count  where 
the  work  or  labour  done  is  connected  with  the  Plaintiff's 
trade,  profession,  or  business,  he  must  prove  of  what  trade? 
profession,  or  business  he  is,  and  the  Defendant  retained 
or  employed  him  in  it,  and  then  prove  the  work  and  labour 
done,  and  that  it  was  in  a  fit  and  proper  manner,  and  then 
give  Evidence  of  the  amount  of  what  he  charges. 

If  it  is  not  so  connected  with  the  Plaintiff's  trade,  pro- 
fession, or  business,  he  must  prove  that  the  Plaintiff  retain- 
ed, hired,  or  employed  him,  to  do  it,  and  that  he  did  it  in 
consequence  under  a  contract  or  agreement  to  pay  him, 
which  may  be  proved  by  a  witness,  or  by  a  writing  in  De- 
fendant's hand. 

And  the  Plaintiff  must,  lastly,  prove  what  he  deserves 
to  have  for  his  trouble.  All  these  facts  are  provable  by 
witnesses. 

Of  the  Evidence  on  the  part  of  the  Defendant  in  this 

Count. 

The  Evidence  which  the  Defendant  may  adduce  to  resist 
the  claim  arising  from  this  Count  (c)  is,  that  what  was  done 

(c)  1  Esp.  Dig.  N.  P.  108.  2  Stra.  728. 


CHAP.  II.]  for  Work  and  Labour.  69 

was  done  gratuitously,  out  of  kindness,  or  with  a  view  to 
a  legacy  or  future  service  which  Defendant  might  render 
to  the  Plaintiff;  this  Evidence  is  an  answer  to  it.  So  the 
Defendant  may  reduce  the  demand  by  counter- Evidence 
of  overcharge  by  Plaintiff,  by  showing  what  Plaintiff  was 
fairly  entitled  to.  These  facts  may  be  proved  by  wit- 
nesses, letters,  or  the  Defendant's  admission, 

6.  Of  settling  the  Evidence  on  the  Count  upon  an  Account 

stated. 


This  does  not  suppose  a  regular  statement  of  demands 
between  the  Plaintiff  and  the  Defendant,  and  a  balance 
struck  in  the  Plaintiff's  favour  :  any  Evidence  of  an  ad- 
mitted balance,  where  there  have  been  mutual  demands, 
either  by  parol  or  by  writing,  is  quite  sufficient  to  enable 
the  Plaintiff  to  recover,  though  different  from  the  sum  sta- 
ted in  the  Declaration. 

This  is,  however,  to  be  taken  to  be  the  case  where  the 
Plaintiff's  case  is  on  the  common  Count  in  the  general 
form,  viz.  "  that  the  Plaintiff  and  Defendant  accounted  to- 
gether, and  the  Defendant  was  then  found  in  arrear,  and 
indebted  to  the  Plaintiff  in  a  large  sum  of  money,  to  wit, 
the  sum  of  /. ,"  where  the  sum  is  laid  under  a  videli- 
cet ;  but  if  the  Count  was  on  an  account  stated  between 
the  Parties,  wherein  the  Defendant  was  found  in  arrear, 
and  indebted  to  the  Plaintiff  in  the  sum  of  20/.  e.  g.  (d) 
and  then  state,  a  promise  to  pay  in  consideration  of  for- 
bearance, the  exact  sum  must  be  proved,  or  the  Plaintiff 

(d)  3  Maw.  &  Selw.  173. 


70  Of  the  Evidence  in  Assumpsit       [CHAP.  II. 

will  be  non- suited.     In  settling  the  Evidence^  therefore, 
this  distinction  is  necessary  to  be  attended  to. 

3.  I  shall  now  proceed  to  the  third  head  of  this  Chap- 
ter, and  consider  the  Evidence  in  cases  of  Assumpsit,  con- 
nected with  the  Person  as  standing  in  some  degree  of 
relation  to  others,  or  in  a  representative  character,  and 
how  the  Evidence  in  those  cases  is  to  be  settled. 

1.  Of  settling  the  Evidence  in  the  case  of  Sureties,  or  Co- 
Bail. 

If  a  Surety,  or  Co-Bail,  is  compelled  to  pay  the  whole 
Debt  for  which  he  became  bound  with  another,  he  may 
call  on  the  Principal  to  repay  him  the  whole  or  for  contri- 
bution from  his  Co- Surety  or  Co- Bail ;  that  is,  if  two  only 
were  joined  in  that  security,  for  a  moiety  of  the  sum  paid ; 
if  three,  for  a  third  each  ;  and  so  in  proportion  where  there 
are  more  joined,  (e) 

In  such  Action,  the  form  of  which  is  Assumpsit  for  mo- 
ney paid  to  the  Defendant's  use,  the  Plaintiff  must  give  in 
Evidence  the  original  security  by  which  he  became  bound 
with  the  Defendant ;  if  by  Bond,  it  must  be  produced  and 
proved  to  have  been  executed,  by  the  Defendant  and  him- 
self, by  the  subscribing  witness  ;  and  if  by  Recognizance, 
it  must  be  produced  and  proved.  When  the  Bond  or 
other  Security  is  so  .proved,  and  it  is  read  in  Court,  the 
sum  in  which  the  Parties  were  bound  appears :  the  Plaintiff 
must  then  prove  that  he  was  called  upon  by  the  obligee 
of  the  Bond,  or  the  Plaintiff  or  Sheriff,  in  the  case  of  a  Bail- 

(e)  1  Esp.  Dig.  N.  P.  5.  Per  Buller  J.  2  Terra  Rep.  105. 


CHAP.  II.]-         inj  Sureties  or  .Landlord a.  71 

Bond  or  Recognizance,  and  compelled  to  pay  the  whole 
Debt.  For  this  purpose,  he  must  show,  that  payment 
was  either  demanded  of  him,  or  enforced ;  which  may  be 
done  by  giving  either  parol  or  written  Evidence  of  the 
demand  made  on  him  in  consequence  of  which  he  paid  ; 
for  he  cannot  voluntarily  and  uncalled  on  pay  the  Debt  for 
which  he  had  bound  himself ;  where  he  has  been  called 
upon,  it  is  always  advisable  to  give  notice  to  the  Principal, 
or  his  Co- Surety,  or  his  Co-Bail  in  the  first  instance,  ei- 
ther to  pay  or  resist  the  demand,  and  he  should  be  prepared 
with  Evidence  of  his  having  done  so :  but  though  advisa- 
ble, it  is  not  necessarily  required  to  give  him  a  title  to 
recover.  In  this  case,  the  obligee  of  the  Bond,  or  Plaintiff 
in  the  Action  on  the  Bail  Bond,  are  good  witnessses  to 
prove  his  payment  of  the  whole  sum  in  which  he  was 
bound  with  Defendant. 


2.  Of -settling  the  Evidence  in  cases  of  Landlord  and  Te- 
nant. 

The  principal  cases  in  Assumpsit,  in  addition  to  that 
for  Use  and  Occupation,  already  treated  of,  are, — 1.  Such 
as  arise  on  the  Covenants  of  an  expired  Lease,  or, — 2.  For 
not  using  the  land  in  a  Husbandlike  or  Tenantlike  man- 
ner. 


1.  Where  there  has  been  a  Lease  containing  Covenants 
of  any  description,  which  has  expired,  and  the  Tenant  con- 
tinues to  hold  as  before,  he  holds  subject  to  all  the  Cove- 
nants contained  in  the  Lease ;  and  the  observance  of  them 
is  enforced  by  special  Action  of  Assumpsit,  stating  the 


72  Of  the  Evidence  in  Actions         [CHAP.  II. 

breaches  in  the  words  of  the  Covenants  in  the  original 
Lease.  (/) 

In  such  case,  the  Plaintiff  must  produce  and  prove  the 
execution  by  the  Defendant  of  the  original  Lease,  by  call- 
ing the  subscribing  witness  ;  the  term  being  mentioned  in 
it,  it  will  appear  by  the  date,  that  it  is  expired,  and  the 
Covenants  on  which  breaches  are  assigned  should  be 
read  from  it :  the  Defendant  must  be  proved  to  have 
held  and  enjoyed  the  Premises  under  the  original  Lease, 
and  to  have  continued  in  possession  after  it  was  expired. 
The  Plaintiff  must  then  call  witnesses  to  prove  the  breaches 
assigned,  and  the  extent  of  the  injury  as  damages ;  as,  for 
example,  if  it  was  for  not  repairing,  by  a  witness  who 
proves  the  state  of  the  Premises,  and  what  sum  it  would 
take  to  put  them  into  repair. 

If  the  Action  is  against  the  Tenant  for  not  using  the 
Land  in  a  Husbandlike  way,  that  is  matter  of  Evidence 
governed  by  the  custom  of  the  country  where  the  Land 
lies,  and  what  is  deemed  good  Husbandry  :  (g)  for  this 
purpose,  the  Plaintiff  must  prove,  that  the  Defendant  was 
his  Tenant,  and  call  witnesses  to  prove  in  what  manner 
he  has  treated  the  Land  while  he  occupied  it.  He  must 
then  call  persons  of  skill  and  experience  who  are  to  speak 
to  what  is  good  Husbandry,  and  whether  what  the  Defend- 
ant has  done,  is  contrary  to  it ;  and,  lastly,  prove  the  ex- 
tent of  the  damage. 

(/)  Esp.  Dig.  N.  P. 

(§•)  Esp.  Dig.  N.  P.  303.  5  Term  Rep.  173.  4  East.  154. 


CHAP.  II.]          against  Vicars  or  Rectors.  73 

3.  Of  settling  Evidence  for  the  Plaintiff'  in  the  cases  of 
Persons  connected  with  the  Church,  or  Ecclesiastical  de- 
mands.    Such  as  Parsons  or  Vicars,   Curates,  Church- 
wardens, or  other  officers. 

1.  Of  Parsons  or  Vicars. 

These  Actions  are, — 1.  For  dilapidations,  which  a  Rec- 
tor or  Vicar,  on  coming  to  a  Living,  is  entitled  to  recover 
from  the  former  Incumbent,  if  living,  in  whose  time  the 
dilapidation  took  place,  or  from  his  representative,  if  he  is 
dead,  (h) 

In  support  of  this  Action,  the  Plaintiff  must  prove  his 
title  to  the  Living,  by  giving  in  Evidence  his  presentation, 
institution,  and  induction  into  it ;  but  to  fix  the  Defendant 
as  late  Incumbent,  or  his  Representative  as  liable  for  the 
dilapidations,  it  is  only  required  to  show  his  acts ;  such  as 
receiving  the  Tithes,  or  Living  in  the  Parsonage  House,  (z) 
The  Plaintiff  must  then  prove  the  state  of  the  Premises, 
and  that  they  belong  to  the  Living  or  Parish,  and  are  di- 
lapidated and  out  of  repair ;  and,  lastly,  the  amount  of  the 
damages. 

2.  For  subtraction  of  Tithes,  upon  which,  however,  it 
should  be  observed,  that  the  form  of  Action  is  not  Assump- 
sit,  but  Debt  under  Stat.  2  and  3  Ed.  6.  ch.  13.  (£) 

Where  the  Parishioners,  among  whom  is  the  Defend- 
ant, have  recognised  the  Plaintiff  as  their  Parson  or  Vicar 

(A)  3  Lev.  262.  2  Rep.  630.  (i)  3  Term  Rep.  634, 

(*)  Vid,.4  Mod.  422.  4  Term  Rep.  367, 

K 


74  Of  the  Evidence  in  Actions        L€HAP.  II. 

by  paying  him  Tithes  on  any  occasion,  (/)  if  he  is  after- 
wards obliged  to  sue  them  for  subtraction  of  Tithes,  Evi- 
dence of  such  former  payment  or  settlement  is  sufficient. 
But  it  should  seem,  that  if  a  new  Incumbent  who  has  ne- 
ver received  Tithes  nor  any  dues  in  that  character,  is 
obliged  to  sue  for  subtraction  of  Tithes,  that  he  must 
prove  himself  regular  Incumbent  of  the  Living,  by  the 
same  Evidence  as  is  above  stated. 

Having  established  his  title  by  such  Evidence  to  the 
Tithes,  the  Plaintiff  must  then  prove  the  Defendant  to  be 
in  possession  of  the  Lands,  for  the  subtraction  of  the  Tithes 
of  which  the  Action  is  brought :  that  they  lie  within  the 
Parish  ;  that  there  was  a  crop  grown  on  them  of  Corn  or 
Hay,  or  the  like,  which  was  cut  and  carried  by  the  De- 
fendant, without  the  setting  out  or  leaving  of  any  Tithes ; 
and  he,  lastly,  must  prove  the  single  value  of  those  car- 
ded away,  which  being  established,  he  will  be  entitled  to  a 
verdict  for  the  triple  value ;  all  this  is  to  be  proved  by  the 
viva  voce  Evidence  of  Persons  acquainted  with  the  Parish, 
and  the  Land  held  by  the  Defendant. 

The  Evidence  for  the  Defendant,  in  this  case,  may  be 
to  shmvy  that  there  was  a  modus  existing  in  the  Parish  of 
a  money  payment  in  lieu  of  Tithes,  which  warranted  him 
to  remove  the  whole  of  the  crop. 

3.  An  Action  of  Assumpsit  will  lie  by  the  Curate  of  a 
Parish  against  the  Incumbent  who  gave  him  a  title  to  be 
ordained,  though  he  has  been  dismissed  by  that  Incum- 
bent from  doing  the  duties  of  the  Church,  (m) 

(0  Per  Lord  Kenyan,  3  Term  Rep.  635. 
(w)  Martyn  t>.  Hynde,  Dougl.  1 37. 


CHAP.  II.]      by  or  against  Church-wardens.  75 

The  Evidence  for  the  Plaintiff,  in  this  case,  is  the  letter 
of  recommendation  in  the  common  form  addressed  to  the 
Bishop  by  the  Incumbent  of  the  Plaintiff:  this  is  proved 
by  the  production  of  the  letter  itself  by  the  Officer  of  the 
Bishop,  and  proving  the  hand-writing  of  the  Defendant 
subscribed  to  it.  It  will  be  then  necessary  to  prove,  that 
the  Defendant  is  then  Incumbent  of  the  same  Parish,  and 
that  the  Plaintiff  had  offered  to  do  the  duty. 

The  damages  are  the  amount  of  the  Curate^  stipend. 

4.  Of  the  Evidence  in  Actions  by  or  against  Churchwar- 
dens. 

As  the  property  of  personal  things  belonging  to  the 
Church  is  in  the  Churchwardens,  they  may  bring  Actions 
in  their  own  names  for  them,  or  Jae  sued  for  repairs  done 
to  the  Church  or  Churchyard.  In  both  cases,  their  ap- 
pointment should  be  proved  :  this  being  by  order  of  Ves- 
try, the  Vestry  book  containing  their  appointment  should 
be  produced  by  the  Vestry  Clerk,  as  the  Person  having 
charge  of  it. 

If,  however,  they  have  given  orders  for  any  thing  to  be 
done  in  their  character  of  Churchwardens,  to  the  Church 
or  Churchyard,  it  will  be  sufficient  to  prove  the  order  so 
given ;  and  it  seems  doubtful  whether  the  general  Evidence 
of  their  being  Churchwardens,  and  acting  as  such,  would 
not  be  sufficient  in  all  cases. 


76  Of  the  Evidence  in  Assump sit       [CHAP.  II. 

5.   Of  the  Evidence  in  case  of  Factors  or  Agents. 

1.  In  the  case  of  Factors,  (ri) — If  a  Factor  buys  or  sells 
goods,  though  they  are  known  to  be  sold  or  bought  on 
account  of  others,  he  may  maintain  an  Action,  or  be  sued 
in  his  own  name. 

The  only  points  on  which  any  question  of  Evidence  can 
arise,  are, — 1.  Where  the  Factor  sues  for  the  price  of  goods 
sold  by  him,  (o)  the  Defendant  may  answer  the  Action 
by  showing,  that  the  payment  for  them  was  stopped  in  his 
hands,  by  the  owner  of  the  goods  giving  him  a  notice  to 
retain  the  money ;  for  that  purpose,  the  Defendant  must 
call  witnesses  to  prove,  that  the  goods  claimed  were  the 
goods  of  such  Person,  and  by  him  sent  to  the  Plaintiff  to 
be  sold :  for  which  purpose,  the  Plaintiff  should  have  no- 
tice to  produce  the  Invoice,  or  Bill  of  Parcels,  sent  by  such 
Person  with  them  to  him  as  a  Factor.  The  owner  cannot 
be  a  witness  for  this  purpose,  as  he  is  interested  in  stop- 
ping the  money  in  the  Defendant's  hand ;  but  it  may  be 
done  by  his  Clerk  or  Servant  proving  the  sending  or  ship- 
ping them,  and  calling  the  Persons  from  the  Wagon  or 
Wharf  to  prove  the  delivery  of  them  to  the  Plaintiff,  or  by 
a  witness  who  knows  them,  and  has  seen  them  in  Defend-, 
ant's  possession.  The  Defendant  must  then  prove  a  no- 
tice to  him  from  the  owner,  either  written  or  verbal,  not 
to  pay  over  the  proceeds  to  the  Plaintiff,  the  Factor,  he 
being  the  principal ;  if  it  is  in  writing,  his  hand  must  be 
proved ;  if  it  is  verbal,  it  is  proved  by  a  witness  who  heard 
it.  But  this  notice  is  only  available  where  the  owner  is  not 

(n)  I  Esp.  Dig.  N.  P.  129. 

(o)  2  Stra,  1182.  Bull.  N.  P.  130. 


CHAP.  II.]  by  or  against  Factors.  77 

indebted  to  the  Factor.  (/>) — 2.  To  a  similar  Action,  by 
the  owner  of  the  goods  for  the  price,  after  such  notice 
against  the  buyer  from  the  Factor ;  the  Defendant  may  set 
up  as  a  defence,  that  the  Factor  was  indebted  to  him,  and 
that  he  sets  off  the  price  of  the  goods  against  the  debt  so 
due  to  him.  In  this  case,  the  Defendant  must, — 1.  Prove 
that  the  Factor  was  indebted  to  him. — 2.  That  he  bought 
the  goods  from  the  Factor,  not  knowing  them  to  be  ano- 
ther's, but  considering  them  as  his  own.  This  latter  piece 
of  Evidence  being,  however,  negative,  it  may  be  disproved 
either  by  production  of  the  Bill  of  Parcels  from  the  Fac- 
tor, in  which  the  goods  are  described  as  the  Plaintiff's,  or 
by  calling  the  Factor  himself ;  for,  in  this  case,  he  has  no 
interest ;  being  either  indebted  to  the  Plaintiff,  in  the 
price  of  the  goods,  or  so  much  of  his  debt  to  the  Defend- 
ant being  left  undischarged,  he  can  prove  the  whole  trans- 
action. 

3.  Every  Factor  is  bound  to  sell  according  to  the 
usage  of  the  trade  ;(q)  if  for  ready  money,  for  ready 
money ;  if  on  credit,  on  the  usual  credit  ;(r)  not  to  sell  to 
Persons  notoriously  of  bad  character  :  and  to  sell,  not  to 
pledge.  If  he  fails  in  any  of  these  respects,  he  is  liable  to 
an  Action  for  breach  of  his  duty. 

Such  action,  however,  cannot  occur  where  the  Factor 
sells  under  a  del  credere  commission,  because  he  is  then 
liable  in  his  own  person  ;  but  if  he  sells,  and  makes  returns 
of  sales,  to  buyers  of  no  credit,  and  who,  when  applied  to, 
cannot  pay  ;  if  he  sells  at  a  longer  credit  than  is  warranted 

(/O  Ibid.  Cowp.  251.  7  Term  Rep.  359. 

(?)  I  Esp.  Dig.  N.  P.  131.  (r)  Gas.  K.  B.  514. 


78  Of  the  Evidence  in  Assumpsit     [CHAP  II. 

by  the  usage  of  Trade,  or  if  the  owner  applies  to  have 
his  goods  returned,  and  he  finds  the  Factor  has  pledged 
them,  he  may  maintain  an  Action  against  him :  the  last 
of  these  cases  is,  however,  the  object  of  an  Action  of  Tro- 
ver against  the  Person  who  has  got  them. 

The  evidence,  however,  in  these  Actions  is  necessarily 
different,  and  must  be  attended  to. 

The  Defendant's  (the  Factor's)  own  return  of  sales  is 
the  groundwork  of  all  these  Actions ;  and  the  Plaintiff 
must  prove  that  he  received  it  from  the  Defendant  by  proof 
of  his  hand-writing,  or  otherwise. 

If  the  Action  is  for  selling  them  to  an  improper  Person, 
it  will  not  be  sufficient  for  the  Plaintiff  to  show  that  the 
buyer  was  insolvent  when  the  money  was  to  be  paid,  if  he 
was  in  good  credit  when  the  goods  were  sold ;  he  must 
therefore  apply  his  Evidence  to  that  period.  He  should 
show  that  he  was  at  that  time  in  bad  credit,  as  that  he  had 
been  a  Bankrupt ;  or  compounded  with  his  creditors  a  short 
time  before ;  or  that  no  one  would  deal  with  him :  these 
are  matters  of  fact  not  requiring  the  strict  proof  of  Bank- 
ruptcy or  the  like,  but  are  matters  of  reputation  to  which 
witnesses  may  give  Evidence  from  their  knowledge  of  the 
particular  fact,  as,  e.  g.  by  a  witness  who  proved  a  debt 
under  his  Commission.  The  Plaintiff  must  then  prove  a 
demand  of  payment  for  the  goods  from  the  Person  men- 
tioned as  the  buyer,  at  the  regular  time  of  payment  expired, 
and  that  he  was  not  paid  :  that  is  sufficient  for  the  Plain- 
tiff's case. 

If  the  Owner's  complaint  is  for  selling  at  too  long  a 


CHAP.  II.J  by  or  against  Factors.  79 

credit :  he  may  maintain  an  Action  against  the  Factor, 
after  the  time  of  the  usual  credit  is  expired. (s)  What  is 
the  time  of  usual  credit,  is  matter  of  Evidence  which  the 
Plaintiff  must  prove,  by  calling  Persons  in  the  trade,  and 
acquainted  with  the  usual  and  regular  credit,  and  then 
showing  by  production  of  the  Defendant's  return  of  the 
Sales,  proved  as  before-mentioned,  that  the  goods  in  ques- 
tion were  sold  at  a  longer  credit,  and  he  will  be  then 
entitled  to  recover. 

If  the  Owner's  Action  is  for  pledging  his  goods,  that 
fact  may  be  proved  by  calling  the  Person  to  whom  he  has 
pledged  them,  or  by  other  proof. 

2.  In  the  case  of  Agents.(t] — Agents  as  such  may 
maintain  Actions  in  their  own  names,  as  in  the  case  of 
Auctioneers.  A  Factor  is  in  fact  an  Agent,  and  the  law 
as  to  Agents  generally,  for  the  most  part  is  the  same. 
The  only  case  of  most  importance,  under  this  head,  is 
where  the  Agent  is  sued  and  seeks  to  protect  himself  under 
his  representative  capacity ;  when  sued  therefore  in  his 
own  name,  he  may  set  up  and  prove,  that  he  was  an 
Agent  merely  under  the  following  circumstances  : — 

If  an  Agent  is  sued  for  money  received  by  him,  in  fact 
not  on  his  own  account,(w)  he  may  give  in  Evidence  :  that 
he  was  known  to  the  Plaintiff  to  be  an  Agent  only  for  an- 
other, and  that  the  Plaintiff  paid  the  money  to  him  volun- 
tarily for  the  use  of  his  Principal,  or  even  by  mistake  for 
the  same  purpose,(a:)  and  that  he  has  paid  it  over  to  his 

(«)  1  Camp.  258.  (f)  1  Esp.  Dig.  N.  P.  132. 

(w)  4  Burr.  1985.  (or)  Cowp.  565. 


80  Of  the  Evidence  in  Assumpsit    [CHAP.  II. 

Principal  without  any  notice  to  retain  it  before  Action 
brought :  with  this  Evidence  the  Plaintiff  cannot  recover. 

In  that  case,  the  payment  of  the  money  to  the  Defendant 
is  the  Plaintiff's  Evidence  ;  and  the  Defendant  must  then 
show,  if  it  does  not  come  out  from  the  Plaintiff's  witnesses, 
that  it  was  not  paid  to  him  on  his  own  account,  but  for 
his  Principal.  He  must  then  show  an  actual  payment 
over  of  the  money  to  the  Principal  before  Action  brought, 
or  any  notice  given  to  retain  it :  for  his  giving  his  Princi- 
pal credit  in  account  for  it,  or  in  his  books,  will  not  dis- 
charge him.(y)  He  should  then  either  prove  payment  to 
the  Principal  by  calling  the  Principal  himself,  or  a  witness 
who  saw  the  payment,  or  by  the  Principal's  receipt. 

In  general,  where  in  other  cases  a  man  is  known  to 
have  been  an  Agent  only,  and  he  gives  up  his  Principal, 
the  latter  ought  to  be  sued,  unless  the  Agent  has  by  some 
Act  or  declaration  taken  a  responsibility  on  himself.(2r) 

Where  the  Principal  is  sued  on  some  contract  made  by 
his  Agent,(o)  the  Plaintiff  must  establish  the  fact,  that  he 
was  Agent,  clear  of  all  doubt ;  and  any  Letters  or  Decla- 
rations of  the  Agent  are  inadmissable  as  Evidence.  He 
must  be  either  called  himself,  or  some  Person  who  can 
prove  the  employment,  either  by  knowing  the  fact  to  be 
so,  or  by  the  Defendant's  admission  of  it ;  and  where  the 
agency  is  established,  the  Defendant  may  in  answer 
show, — 1.  That  the  Agent  was  not  a  general  Agent,  or 
authorised  in  the  particular  transaction  to  act  to  the  extent 


(y)  Cowp.  3  Maw.  &  Selw.  348.  (z)  15  East.  64.  1  Campb.  85. 109 
(a)  I  Esp.  Dig.  N.  P.  132. 


CHAP.  II.]  by  or  against  Agents.  81 

he  did ;  for  unless  the  Agent  is  a  general  one,  or  so 
authorised,  he  cannot  bind  his  Principal,  (b)  A  special 
Agent  is  bound  to  act  within  the  scope  of  his  authority ; 
as  if  a  Broker  is  authorised  to  buy  one  kind  of  silk,  and 
he  buys  another,  the  Principal  is  not  bound  ;  (c)  but  if  the 
authority  of  the  Agent  is  not  circumscribed,  the  Principal 
shall  be  bound. — 2.  The  Principal  may  show  that  the 
Plaintiff  trusted  the  Agent ;  gave  him  time  for  payment 
without  acquainting  the  Principal,  and  that  shall  discharge 
him.  As  the  authority  to  the  Agent  may  be  by  letter  or 
by  parol,  the  defence  is  proved  accordingly. (d) 

6.   Of  the  Evidence  in  Actions  by  or  against  the  Owners 

of  Ships. 

The  property  in  Ships  being  regulated  by  the  Statute 
of  26  Geo.  III.  c.  60.  s.  66.  and  34.  Geo.  III.  c.  68.  s. 
11.,  with  respect  to  their  being  duly  registered ;  in  all  Ac- 
tions, by  Ship  Owners,  that  must  be  strictly  attended  to 
when  it  is  necessary  to  go  into  Evidence  of  strict  property 
in  a  Ship. 

1.  Actions  of  Assumpsit  against  Ship-owners  are  prin- 
cipally for  repairs  done  to  the  Ship,  for  Seamen's  wages, 
or  for  negligent  carrying  of  goods ;  in  such  Actions, 
where  there  are  many  Defendants  on  the  Record  sued  in 
that  character,  their  joint  liability  in  this  as  in  every  Action, 
founded  on  contract,  must  be  made  out.(>) 

For  this  purpose,  if  a  defendant  is  proved  to  have  acted 

(b)  3  Term  Rep.  763.  (c)  1  Esp.  C.  N.  P.  1 1 1. 

(d)  3  East.  147.  (?)  l  Esp.  Dig.  N.  P.  133, 


8'2"  Of  the  Evidence  in  Assumpsit     [CHAP.  II. 

as  Owner,  or  has  represented  himself  as  such,  has  given 
directions  respecting  the  voyage  to  the  Master,  or  given 
orders  for  any  thing  to  be  done  connected  with  the  Ship, 
no  further  Evidence  is  necessary  to  fix  him  as  the  Owner. 

But  if  others  are  joined  with  him  who  have  done  no  act, 
or  appeared  as  Owners,  they  are  fixed  with  demands 
connected  with  the  Ship ;  first,  by  producing  Evidence  of 
the  Ship's  Register,  in  which  their  names  appear.  This 
is  had  from  the  Ship's  Registry  Office  at  the  Custom 
House,  from  whence  the  original  Register  will  be  pro- 
duced. 

But  this  Register  alone,  or  even  though  accompanied 
with  the  Affidavits  of  other  part  Owners,  swearing  that 
they,  and  the  Person  sought  to  be  charged  as  a  part 
Owner,  were  the  Owners  of  the  Ship,(y)  will  not  be  suf- 
ficient Evidence  to  fix  such  Person,  without  further  proof 
that  he  assented  to  the  Register,  or  in  some  way  recognised 
it.  This  proof  may  be  had  by  some  Evidence  of  his 
representing  himself  on  any  occasion  to  be  so,  by  proving 
his  hand-writing  subscribed  to  the  Register,  or  by  any 
act  done  by  him,  or  order  given,  in  the  character  of  a  part 
Owner. 

This  Evidence,  which  is  composed  of  written  and  parol 
Evidence,  is  indispensable  in  every  case  to  establish  the 
Defendant's  liability  in  the  character  of  Ship-owner,  who 
is  sued  as  such  for  any  demand  connected  with  the  Ship  ; 
that  is,  therefore,  the  first  piece  of  Evidence  in  all  Actions 
against  them. 

(/)  U  East.  226;  2  Taunt.  5.  2  Campb,  170. 


CHAP.  II.]        by  or,  against  .Ship- Owners.  83 

The  rest  of  the  Evidence  depends  upon  the  nature  of 
the  Action  ;  if  it  is  for  repairs  done  to  the  Ship,  and  the 
declaration  for  work  and  labour,  the  Plaintiff  must  prove 
the  orders  given  by  the  Defendant,  or  the  managing  Owner, 
or  by  the  Master,  what  was  done,  and  the  amount  of  it. 
This  is  done  by  the  testimony  of  witnesses. (g) 

If  it  is  an  Action  for  Seamen* s  Wages  earned  on  board 
the  Ship,  the  Declaration  is  for  work  and  labour  generally, 
even  though  the  Seamen  has  signed  Articles  under  Seal, 
and  bound  himself,  to  serve  for  the  Wages  set  opposite 
to  his  name.  And  the  Stat.  2  Geo.  II.  c.  35.  enacts,  that 
all  articles  between  the  Master  or  Mariners  for  foreign 
voyages  shall  be  in  writing ;  that  no  obligation-  shall  lie  on 
the  Seamen  to  produce  them ;  nor  shall  he  fail  in  any 
Action  for  the  want  of  the  production  of  them. 

The  course  of  Evidence,  therefore,  at  Nisi  Prius,  in 
these  cases,  is  for  the  Plaintiff  to  call  for  the  Ship's  Arti- 
cles, which  the  Defendant  is  bound  to  produce,  though  no 
notice  has  been  given  to  do  so  ;(h)  when  produced,  they 
show  the  rate  of  Wages  at  which  the  Plaintiff  served,  and 
he  is  then  called  upon  to  prove  the  length  of  time  which 
he  served  on  board,  which  must  be  to  the  end  of  the 
voyage :  this  is  usually  done  by  some  of  the  Crew  who 
served  with  him.  % 

This  Statute,  however,  applies  to  British  not  to  foreign 
vessels,  and  the  Statute  mentions  foreign  voyages  only.(z) 
In  the  case  therefore  of  Suits  for  Wages  on  board  foreign 

O)    1  Term  Rep.  73.  (h)  2  Campb.  315. 

(z)  3  Campb.  290. 


84  Of  the  Evidence  in  Assumpsit     £CHAP.  II. 

vessels,  the  Plaintiff  must  prove  the  hiring,  the  rate  of 
Wages  he  engaged  at,  or  if  he  has  no  Evidence  of  that, 
the  rate  of  Wages  paid  to  others,  serving  as  he  did,  and 
the  length  of  service,  which  will  be  sufficient. 

It  should,  however,  be  observed,  as  a  proper  caution  to 
the  Plaintiff's  Attorney  in  practice,  to  take  out  a  Sum- 
mons, and  procure  a  Judge's  Order  for  the  sight,  perusal, 
or  a  copy  of  the  Ship's  Articles,  as  they  often  will  be 
found  to  contain  Covenants  or  Agreements  between  the 
Master  and  Crew,  which  may  defeat  the  Plaintiff's  Action. 
But,  in  every  instance,  the  Plaintiff  should  be  prepared  to 
prove,  that  he  served  till  the  conclusion  of  the  voyage  ;  as 
if  Defendant  proves  that  he  left  the  Ship,  or  deserted  before 
that  time,  he  cannot  recover.  So  the  Defendant  may 
prove  that  the  Ship  was  lost,  which  equally  deprives  him 
of  any  claim  for  Wages. 

If  the  Action  is  against  the  Defendant,  as  Owner,  for 
negligence,  the  Plaintiff  should  prove  the  Shipping  of  the 
Goods,  the  injury  which  they  suffered,  and  show  that  it 
arose  from  negligent  stowage :  such  as  the  want  of  suffi- 
cient dunnage,  or  the  Ship  not  being  waterproof :  and  the 
amount  of  the  damage ;  and  it  will  be  always  requisite 
clearly  to  show  the  cause  of  injury,  and  connect  it  with 
the  Ship. 

2.  The  principal  Action,  by  Ship-Owners,  is  for 
Freight,  or  charges  for  the  Shipping  of  Goods,  or  on  Poli- 
cies of  Insurance. 

When  the  Plaintiffs  sue  as  Ship-owners,  for  Freight, 
Insurance,  or  such  like  demands,  they  must  prove  them- 


CHAP.  II.]  by  Ship-Owners.  85 

selves  invested  with  the  full  legal  Ownership  required  by 
the  Statutes  before-mentioned. 

The  regular  mode  to  do  so  is  as  before-mentioned,  viz. 
by  the  production  of  the  Register  and  Certificate  of  Regis- 
ter from  the  Custom  House,  and  proof  of  the  names  of  all 
the  Parties,  Plaintiff  appearing  as  such,  and  some  Evi- 
dence of  their  acting  as  Owners.  This  is  decisive  ;  but 
general  Evidence  of  Ownership,  unless  it  is  contested, 
will  otherwise  be  sufficient  at  first.  But  it  is  perfectly 
clear,  that  if  any  Persons  declare  as  joint  Owners  of  a 
Ship,(£)  and  the  Defendant  gives  the  Ship's  Register  from 
the  Custom  House  in  Evidence,  and  the  name  of  any  of 
the  Plaintiffs  is  wanting  in  it,  that  the  Plaintiffs  must  be 
nonsuited ;  for  unless  the  Owner's  name  appear  in  the 
Ship's  Register,  &c.  he  is  not  a  legal  owner,  and  there- 
fore can  maintain  no  Action. 

Having,  however,  first  established  a  legal  Ownership, 
if  they  sue  for  Freight,  they  must  prove  the  Charter-party 
or  Bill  of  Lading  if  any,  or  the  hiring  of  the  vessel  for  a 
particular  voyage  or  time  ;  the  sum  to  be  paid  either  by 
agreement,  or  on  a  quantum  meruit ;  and  prove  that  she  per- 
formed the  voyage  or  service,  and  that  the  goods  were 
delivered  to  the  Defendant,  and  the  amount  of  the  de- 
mand. 

If  the  Action  is  for  Freight  on  a  Charter-party  of 
affreightment  not  under  Seal,  between  the  Plaintiff  and 
Defendant,  no  proof  of  Ownership  is  required,  the  Defen- 
dant having  contracted  with  the  Plaintiff  in  that  character ; 

(*)  5  Term  Rep.  709. 


86  Of  the  Evidence  in  Assumpsit.      [CHAP.  II. 

in  that  case,  therefore,  the  Plaintiff  must  prove  the 
Defendant's  signature  to  the  Charter-party,  and  that  the 
voyage  was  performed  :  the  rate  of  payment  being  estab- 
lished by  the  Charter-party,  it  ascertains  the  amount  of  the 
damages.  The  performance  of  the  voyage  maybe  proved 
by  the  Master,  or  any  one  who  sailed  on  the  voyage  ;  and 
any  Person  who  is  proved  to  have  received  the  goods 
under  the  Charter-party,  whether  he  is  the  Person  named, 
Consignee,  or  Indorsee  of  it  or  not,  is  liable  to  the  Action 
for  Freight.  The  Plaintiff  therefore  must  prove  the 
delivery  of  the  Cargo  to  the  Defendant  pursuant  to  the 
Charter-party,  which  is  sufficient ;  but  he  must  be  proved 
to  have  received  it  under  it,  or  on  his  own  account.(/) 

If  the  Action  is  for  a  loss  on  a  Policy  of  Insurance, 
the  Evidence  to  be  produced  is  as  before  stated,  page  35. 

7.  Of  the  Evidence  in  Actions  by  or  against  Partners. 

1.  In  Actions  brought  by  Partners,  to  recover  a  Part- 
nership demand  or  claim,  (m)  it  is  indispensable  that  all 
should  join  and  appear  as  Plaintiffs  on  the  Record  ;  for  if 
it  comes  out  on  the  Trial,  that  any  one  is  omitted,  it  is  a 
decisive  ground  of  Nonsuit,  though  the  Plea  is  the 
General  Issue. 

The  Plaintiffs,  therefore,  must  always  be  prepared  with 
Evidence  of  their  Partnership,  (n)  and,  that  all  those  whose 
names  are  on  the  Record,  are  Partners  in  the  demand,  or 

(0  13  East.  399.  and  1  Mau.  8c  Selw.  157.  2  Mau.  &  Selw.  303. 
(m)  5  Term  Rep.  709. 
(n)  3  Campb.  329. 


CHAP.  II.]  by  or  against  Partners.  87 

concern,  for  which  the  Action  is  brought :  this  is  done  by 
many  ways ;  as,  by  producing  the  Partnership  Deed,  and 
proving  the  execution  of  it,  by  all  the  Plaintiffs  ;  by  the 
Evidence  of  the  Solicitor  employed  for  the  Firm,  and  who 
knows  who  compose  it ;  by  the  Evidence  of  a  Clerk  em- 
ployed by  them,  or  by  any  Person  who  has  dealt  with  all 
in  that  capacity. 

An  exception  is,  however,  to  be  observed  to  this  rule, 
requiring  such  Evidence  of  the  Partnership  ;  that  is  the 
case,  where  the  Defendant  pays  money  into  Court,  for  he 
by  that  admits  a  contract  made,  with  those  whose  names 
appear  as  Partners,  and  he  cannot  controvert  it  by  Evi- 
dence. 

2.  If  the  Defendants  are  sued  as  Partners  (o)  the  Plain- 
tiffs must  prove,  that  all  the  Persons  whom  he  has  made 
Defendants  on  the  Record,  were  jointly  concerned  in  the 
demand,  or  concern,  in  which  the  Action  is  founded.  If 
they  appear  as  Partners  to  the  world,  and  carry  on  trade, 
or  any  concern,  under  a  joint  Firm,  on  giving  Evidence, 
that  they  do  so,  they  constitute  that  Firm ;  it  will  be  suffi- 
cient for  the  Plaintiff  to  show  that  fact,  and  then  the  act  of 
one  of  the  Firm  will  bind  them  all,  if  the  demand  is 
connected  with  that  business  which  they  so  carry  on  to- 
gether. If,  however,  there  is  a  dormant  Partner,  whose 
name  may  be  covered  under  the  word  Co.,  or  who  shares 
in  the  profits  of  the  Trade,  or  concern,  though  the  word 
Co.  be  not  used,  and  his  name  does  not,  in  any  way,  ap- 
pear, or  any  Person  who  may  have  joined  in  that  which  is 
the  ground  of  Action :  if  he  is  made  a  Defendant,  the 

(o)  Boll.  N.  P.  179, 


88  Of  the  Evidence  in  Assumpsit       [CHAP.  II. 

Plaintiff  must  give  distinct  Evidence  as  to  him,  and  show, 
that  he  had  such  an  interest  as  constituted  him  a  Partner, 
or  that  he  is  jointly  interested  in  the  particular  matter 
which  is  the  subject  of  the  Action.  This  is  to  be  done 
by  vivd  voce  Evidence  of  Persons  acquainted  with  the 
Defendants,  and  their  course  of  dealing,  or  with  the  par- 
ticular transaction  in  question.  Under  this  head,  of  set- 
tling Evidence,  it  must  not  be  forgot,  that  if  the.  Action  is 
joint  against  many  Defendants,  the  PlaintiiF  must  prove, 
by  distinct  Evidence,  that  every  Defendant  on  the  Record 
was  concerned  in  that  which  is  the  subject  of  the  Action ; 
and  if  he  fails  to  fix  any  one  of  them  by  Evidence,  he  must 
be  nonsuited,  for  then  the  contract  proved,  will  be  differ- 
ent from  that  declared  on. 

But,  though  there  may  be  many  more  Partners  or  Per- 
sons concerned  in  the  transaction  on  which  the  Action  is 
founded,  than  those  who  are  sued,  and  appear  as  Defend- 
ants on  the  Record,  and  that  should  appear  in  Evidence 
on  the  Trial,  the  Plaintiff  will,  nevertheless,  be  entitled  to 
a  Verdict,  provided  he  fixes  those  by  Evidence  whom  he 
has  made  the  Defendants ;  (/>)  for,  if  they  meant  that  the 
others  should  have  been  joined,  they  could  only  avail 
themselves  of  that  circumstance  by  a  Plea  in  Abate- 
ment. 

If  there  is  a  Plea  in  Abatement,  "  that  others  ought  to 
be  joined,"  the  Plaintiff  may  reply,  that  the  Defendant  un- 
dertook solely,  and  not  with  others ;  or  he  may  deny  the 
Defendant's  Partnership  with  the  others,  whom  it  is  plead- 
ed ought  to  be  joined.  In.  this  latter  case,  the  Issue  lies 

(/z)  Rice  -u  Shute,  5  Burr.  2611. 


CHAP.  II.]  by  or  against  Partners.  89 

on  the  Defendant,  and  he  must  prove  a  Partnership^  before 
observed,  in  the  case  of  Plaintiff's  Partners.  If  the  Plain- 
tiff relies  on  the  cause  of  Action  being  the  Defendant's 
only,  the  Issue  lies  upon  him,  and  he  must  prove  it,  by 
showing,  that  the  Defendant  alone  contracted  with  him. 

If  the  Defendant  plead  Partnership,  and  he  has,  in  fact, 
no  ostensible  Partner  ;  so  that,  if  the  Plaintiff  were  to  sub- 
mit to  the  Plea,  and  enter  a  cassetur  billa,  he  would,  in 
another  Action,  be  under  difficulties  to  fix  such  Partner, 
It  is,  therefore,  better  to  reply  the  sole  undertaking  and 
liability  of  the  Defendant  on  the  Record ;  in  that  case,  it 
will  be  good  Evidence,  if  the  Action  be  for  goods  sold,  to 
show  by  witnesses,  that  the  Defendant  ordered  the  goods, 
that  no  other  Person  was  ever  seen,  or  known,  to  act  as  a 
Partner. 

There  is  no  mistake  into  which  I  have  found  those  in 
Practice  so  often  fall,  as  the  not  distinguishing  the  cases, 
where  the  Evidence  at  Nisi  Prius  implicates  more  Parties 
than  appear  on  the  Record.  The  Rule  is  this :  if  it  ap- 
pear, by  the  Plaintiff's  own  showing,  or  by  Evidence  ad- 
duced by  the  Defendant,  that  the  Plaintiff  has  a  Partner, 
or  Partners,  or  that  there  was  any  other  Person  jointly  in- 
terested with  the  Plaintiff,  and  his  or  their  names  do  not 
appear  on  the  Record,  the  Plaintiff  must  be  nonsuited; 
for  he  ought  to  state  truly  with  whom  the  Defendant's 
contract  was  made,  by  stating  the  names  of  all  concerned, 
and  their  joining  in  the  Action ;  otherwise,  the  contract 
proved  by  Evidence  is  not  that  declared  on. 

But,  if  it  appear  at  the  Trial,  that  the  contract  stated, 
was  with  the  Defendant,  and  others  who  are  not  made 


90  Of  the  Evidence  in  Assumpsit       [CHAP.  IL 

Defendants,  this  shall  not  affect  the  Plaintiff's  right  to  re- 
cover, if  there  was  no  Plea  in  Abatement,  but  he  may  re- 
cover against  those  who  appear  as  Defendants  on  the 
Record. 

Of  the  Evidence  for  the  Defendant. 

If  there  are  any  number  of  Partners  in  Trade  who  are 
sued  jointly,  for  Goods  which  appear  to  have  been  order- 
ed  in  the  way  of  the  Partnership  Trade,  or  Bills  accepted 
apparently  connected  with  it ;  the  Defendant  has  no  way 
of  defending  himself,  but  by  showing,  that  the  transaction 
was  not  a  Partnership  one,  but  for  the  benefit  of  one  or 
more  of  the  other  Partners,  and  that  fact  known  to  the 
Plaintiff. 

As,  e.  g.  if  an  Action  was  brought  on  a  Bill  of  Ex- 
change, bearing  the  acceptance  of  the  Firm,  which,  by  law, 
any  of  the  Partners  may  do  on  the  Partnership's  account  j 
anyone  of  the  Firm  may  plead  Non-Assumpsit,  and  show  by 
Evidence,  that  the  Bill  was  not  for  the  Partnership's  use, 
but  for  the  sole  account  of  another  Partner,  or  Partners, 
and  that  the  Plaintiff,  when  he  took  the  Bill,  knew  the 
fact  to  be  so ;  proof  of  these  facts  is  indispensable,  on  ac- 
count of  the  legal  right  which  any  Partner  has  to  bind  the 
Firm,  and  the  Bill  on  the  face  of  it  would  purport  to  be 
for  the  Partnership's  use.  This  is  matter  of  viva  voce 
Evidence ;  but  as  most  of  these  cases  are  matters  of  collu- 
sion between  the  Plaintiff  and  some  of  the  Partners,  in  al- 
most every  case  it  is  necessary  to  have  recourse  to  a.  Bill 
of  Discovery  as  the  only  mode  to  get  at  the  truth. 


CHAP.  II.]          in  Cases  of  Bankruptcy.  91 

8.  Of  the  Evidence  in  Actions  by^  or  against;  Assignees  of  a 

Bankrupt. 

This  head  of  Evidence  underwent  a  considerable  change 
-since  the  passing  the  Act,  49  Geo.  III.  c.  121.  S.  10., 
by  which,  whether  the  Assignees  are  Plaintiffs  or  Defend- 
ants, the  production  of  the  Proceedings  under  the  Com- 
mission are  made  Evidence  ;  that  is,  the  Depositions,  as 
to  the  Trading,  Petitioning  Creditor's  Debt,  and  Act  of 
Bankruptcy,  made  before  the  Commissioners,  are  declar- 
ed to  be  sufficient  Evidence  of  those  matters,  unless  the 
Party  is  called  upon  by  the  other  side  to  prove  them  at  the 
Trial. 

1,  This  is  done  by  a  notice  served  on  the  opposite  At- 
torney, requiring  him  to  prove  all  these  matters,  or  any  of 
them.  If  the  Defendant  calls  upon  the  Plaintiff  to  do  so, 
he  .must  give  that  notice  before  he  pleads  ;  if  the  Plaintiff 
calls  upon  the  Defendant  to  do  so,  it  must  be  before  Issue 
joined. 

When,  therefore,  the  Assignees  are  required  to  prove 
every  step  of  the  Bankruptcy,  and,  which  is  necessary  to 
invest  them  with  the  character  of  Assignees  :  They  must 
prove  that  the  Bankrupt  was  a  Trader ;  this  is  done  by  a 
witness  acquainted  with  the  business  which  the  Bankrupt 
followed  before  he  was  declared  Bankrupt.  The  next 
step  is,  the  petitioning  Creditor's  debt.  That  may  be 
done  either  by  written  Evidence ;  such  as  by  a  Bill  of 
Exchange,  or  Promissory  Note,  on  which  the  Bankrupt's 
name  appears,  and  proving  his  hand-writing,  as  before 
directed,  in  Actions  on  Bills  of  Exchange  :  by  his  Bond, 
or  Warrant  of  Attorney  to  confess  a  Judgment,  the  exe- 


92  Of  the  Evidence  in  Assumpsit      [CHAP.  IT> 

cution  of  which,  must  be  proved  by  the  subscribing  wit- 
ness, if  there  is  one  to  it ;  so  it  may  be  proved  to  be  for 
goods  sold  and  delivered  to  him,  while  in  Trade,  by  the 
Evidence  before- mentioned,  (page  66.)  on  the  count  for 
goods  sold ;  so  for  money  lent ;  and  it  may,  lastly,  be 
proved,  by  giving  Evidence  of  an  acknowledgment  by  the 
Bankrupt,  that  he  was  indebted  to  the  Petitioner,  in  a  sum 
of  100/.  or  upwards ;  but  this  must  appear  to  have  been 
made  before  the  Act  of  Bankruptcy,  (q) 

The  next  step  is,  an  Act  of  Bankruptcy  :  as  these  are 
many;  it  is  proved  by  the  viva  voce  testimony  of  a  witness 
swearing  to  the  fact,  necessary  to  constitute  an  Act  of 
Bankruptcy;  such  as,  of  the  Bankrupt  being  denied  to  a 
Creditor  e.  g. :  and,  in  this  case,  the  Bankrupt's  declara- 
tion of  his  situation ;  as,  that  he  went  out  of  the  way  to 
avoid  his  Creditors,  or  was  denied  to  one,  because  he 
could  not  pay,  is  good  Evidence. 

The  last  proof,  is  the  execution  of  the  Assignment  of 
the  Commissioners,  by  the  subscribing  witness.  This  is 
now  seldom  required. 

This  is  the  strict  proof,  required  in  cases  of  Actions  by 
the  Assignees  ;  and  they  are  bound  to  do  it,  if  called  on, 
with  this  exception,  that  if  the  Defendant  has  been  em- 
ployed by  them,  as  Assignees ;  (r)  as,  for  example,  to  sell 
part  of  the  Bankrupt  property,  he  cannot  call  upon  the 
Assignee,  to  prove  the  Commission,  as  in  other  cases , 
for  having  dealt  with  them  in  that  character,  he  cannot  af- 
terwards dispute  it.  (s) 

(?)  Dovvton  v.  Cross,  1  Esp.  N.  P.  C.  168. 

'^  1  Barn.  &  Aid.  677.  (»)  1  Esp.  N.  P.  C.  342. 


CHAP.  II.]          m  Cases  of  Bankruptcy.  93 

But,  where  notice  has  been  given,  of  disputing  the 
Commission,  or  any  part  of  it  ;  the  Party  giving  the  no- 
tice must  be  prepared  to  prove  the  giving  of  it,  by  the 
witness  who  served  it  on  the  opposite  Party. 

2.  If  the  Commission  is  not  contested  :  the  Depositions 
are  produced  by  the  Solicitor  tinder  the  Commission.  The 
opposite  Party  may  require  any  Deposition  to  be  read,  and 
is  at  liberty  to  object  it,  as  it  appears  on  the  face  of  the 
Proceedings,  or  to  bring  Evidence  to  disprove  it,  for  it  is 
not  to  be  taken  to  be  conclusive  ;  (t)  as,  for  example,  if  the 
Bankrupt  was  found  to  be  a  Trader,  and  it  appeared  on 
the  face  of  the  Proceedings,  that  he  was  a  Farmer,  and 
bought,  or  sold,  nothing  but  for  the  use  of,  or  produce  of, 
his  Farm,  the  Party  may  object,  that  this  does  not  esta- 
blish a  Trading  within  the  Bankrupt  laws. 

So,  if  the  proceedings  found  him  a  Bankrupt  by  reason 
of  100/.  being  a  supposed  debt  to  A.  B.,  the  Party  may 
call  witnesses  to  prove  that  debt  was  paid  before  the  suing 
out  of  the  Commission,  so  that  there  was  no  legal  petition- 
ing Creditor's  debt,  to  support  the  Commission  ;  for,  the 
Proceedings,  when  produced,  are  only  primd  facie  Evi- 
dence of  those  matters  declared  to  be  so  by  the  Statute.(w) 


3.  As  to  the  vivd  voce  Evidence,  admissible  in  this 
these  points  are  to  be  observed  in  settling  the  Evidence. 

1.    The  Bankrupt,  or  his  "ivife,  are  inadmissible  wit- 

(0  3  Campb.  424. 

(a)  Bull.  N.  P.  43.  2  H.  Bl.  279.  2  Stra.  829.  sEsp.  N.P.C.  22. 
Same,  187.  1  Selw.  N.  P.  239. 


94  Of  the  Evidence  in  Assumpsit      [C  H  A  p .  II. 

nesses  to  prove  any  fact  in  support  of  the  Commission  : 
but  having  obtained  his  Certificate,  and  released  to  his 
Assignees  the  allowance  given  by  Statute,  he  may  be  ex- 
amined, as  a  witness  in  support  of  any  Action,  brought  to 
recover  any  part  of  his  property  by  his  Assignees  ;  and 
without  having  obtained  his  Certificate,  he  may  be  called 
as  a  witness  against  his  Assignees,  in  questions  respect- 
ing his  property  ;  as,  for  example,  if  his  Assignees  sued  a 
Person  on  a  Bond  made  to  the  Bankrupt  before  his  Bank- 
ruptcy, the  Defendant  may  call  him  to  prove  it  paid,  though 
he  has  not  got  his  Certificate. 

2.  A  Creditor,  whether  he  has  proved  his  debt  under  the 
Commission  or  not,  is  an  inadmissible  witness,  either  to 
support  the  Commission,  or  the  demand,  (x) 

But  he  may  be  made  competent  by  a  Release  of  his  debt, 
or  having  sold  his  dividend. 

But  a  petitioning  Creditor  may  be  a  witness  to  defeat  a 
Commission,  or  to  disprove  the  amount  of  his  own  debt, 
but  not  to  support  the  Commission,  (y) 

And  note,  that  if  it  is  a  joint  Bankruptcy,  there  must  be 
distinct  proof  of  the  Bankruptcy  of  each — and  these  fur- 
ther matters  of  Evidence  on  the  part  of  the  Plaintiff  are  to 
be  attended  to. 

4.  As  the  Bankrupt,  when  Defendant,  by  the  bare  pro- 
duction of  his  Certificate,  establishes  his  defence  by  its  be- 

(or)  2  Camp.  301.  2  Ves.  Sc  B.  177.  1  Rose,  392.  in  Not.  2  Black. 
1273. 
(y)  2  Camp.  412.  1  Stark.  40. 


CHAP.  II.]          in  Cases  of  Bankruptcy.  95 

ing  bprima  facie  answer  to  the  Plaintiff's  case,  the  Plaintiff 
can  only  succeed,  by  going  into  Evidence,  to  establish 
some  one  of  the  following  points,  by  which  the  operation 
of  the  Certificate  is  defeated ; — (z) 

1.  He  may  show  the  Certificate  to  be  void,  by  reason 
of  the  Bankrupt  having  given,  on  the  marriage  of  a  child 
100/.  unless  he  had  then  sufficient  to  pay  his  debts. — 2. 
That  he  has  lost,  in  one  day  51.  or  100/.  in  twelve  months 
before  his  Bankruptcy,  by  gambling,  or  playing  at  the 
games  mentioned  in  Stat.  5  Geo.  II.  c.  30.  or  by  stock- 
jobbing ;  that  he  has  done  so  is  matter  of  viva  voce  Evi- 
dence, by  calling,  as  witnesses,  the  Persons  who  have 
played  with  him,  or  seen  him  lose  the  money,  or  pay  it  on 
any  of  these  accounts.  This  was  done  with  effect  in  the 
case  of  Bateson  v.  Hartsink,  4  Esp.  N.  P.  C.  43.  Or  that 
it  is  void  under  the  Stat.  24  Geo.  II.  c.  57.  s.  9.  by  the 
Bankrupt's  fraudulently  permitting  proof  of  debts,  under 
his  Commission,  by  Persons  to  whom  he  was  not  indebt- 
ed in  the  sums  so  proved,  and  that  they  have  signed  his 
Certificate :  to  do  this,  the  Persons  themselves  may  be  call- 
ed, or  it  may  be  proved,  by  collateral  Evidence,  that  they 
were  not  Creditors.  This  was  done,  and  the  Certificate 
avoided  in  a  case  of  Edmonstone  v.  Webb,  3  Esp.  N.  P.  C. 
264. — 3.  The  Plaintiff  may  show,  that  the  Bankrupt  had 
been  so  before,  or  compounded  with  his  Creditors,  and 
that  the  Certificate  produced,  being  under  the  second 
Commission,  that  he  had  not  paid  15s.  in  the  pound,  (a) 
To  establish  this,  the  Plaintiff  should  produce  the  Com- 
mission, or  Proceedings  under  it.  (b)  If  that  Evidence 
• 

(z)  1  Esp.  Dig.  N.  P.  192.  (a)  5  Terra  Rep.  28~. 

(A)  3  Esp.  N.  P.  C,  195. 


I 

96  Of  the  Evidence  in  Assumpsit       [CHAP.  II; 

cannot  be  had,  there  should  be  a  subpoena  duces  tecum 
to  the  Secretary  of  Bankrupts,  or  the  proper  Officer,  to 
produce  the  Document,  or  Entry,  from  the  Bankrupt  Of- 
fice, of  the  issuing  of  the  first  Commission  :  if  he  com- 
pounded with  his  Creditors,  or  Creditor  ;  any  other  wit- 
ness may  prove  the  fact,  (c)  So,  if  it  was  by  Deed,  the 
Deed  should  be  produced,  and  proved,  by  the  subscri- 
bing witness.  But  the  Composition  with  Creditors,  which 
is  required,  must  be  a  general  Composition  with  all  the 
party's  Creditors,  and  for  his  own  separate  Debts,  not  for 
those  of  a  Partnership,  (d)  The  Bankrupt,  by  the  pro- 
duction of  the  Certificate,  admits  the  issuing  of  the  second 
Commission,  and  it  lies  upon  him  to  prove  that  he  paid 
15s.  in  the  pound. — 4.  The  Plaintiff  may,  lastly,  show, 
that  the  Bankrupt  gave  money  to  some  of  his  Creditors  to 
induce  them  to  sign  his  Certificate,  for  this  renders  it 
void.  (<?)  This  may  be  proved  by  the  Person  who  had  the 
money,  or  by  any  witness  who  knows  of  it. 

2.  If  the  Certificate  has  been  regular,  the  Plaintiff  may, 
notwithstanding  the  Debt  was  prior  to  his  Bankruptcy, 
give  in  Evidence  a  promise  made  by  the  Bankrupt  to  pay 
it  since  he  became  Bankrupt,  for  that  will  bind  him.(/*) 

This  promise  may  be  proved  either  by  letter,  or  by  a 
witness  who  heard  fie  Bankrupt  make  it ;  the  witness 
must  be  accurate  as  io  The  time  when  it  was  madt,  so  that 
it  should  appear  to  have  been  made  after  the  Bankruptcy. 
The  same  accuracy  of  proof  must  be  attended  to,  if  it  has 

(c)  1  Bos.  &  Pull.  467.  16  East.  225.  3  Bos.  &  Pull.  185, 

(rf)  15  East.  619. 

(<;)  15  East.  248. 

(/)  1  Esp.  Dig.  N.  P.  193.  Cowp.  544. 


CHAP.  II.]  in  Cases  of  Bankruptcy.  97 

been  made  by  letter ;  and  the  Bankrupt's  hand-writing 
must  be  proved. 

In  addition  to  which,  it  must  be  observed,  in  settling 
the  Evidence,  that  the  proof  must  be  of  an  absolute  pro- 
mise to  pay,  not  of  a  conditional  or  qualified  one.(g-) 

3.  The  Plaintiff  may  show,  from  the  nature  of  his 
demand,  that  it  was  not  proveable  under  the  Commission, 
for  to  such  only  the  Certificate  is  a  bar ;  such  as  that  it  did 
not  arise,  ex.  gr.  until  after  the  Bankruptcy.  That  is  a 
matter  of  fact  to  be  proved  by  Evidence  and  dates. 

9.  Of  the  Evidence  in  dictions  of  Assumpsit  by,  or  against, 
Executors  or  Administrators. 

In  this,  as  in  every  case,  in  which  a  Plaintiff  sues  in  a 
representative  capacity,  he  must  show  himself  to  be  com- 
pletely invested  with  that  character.  The  power  of  the 
Executor  is  derived  from  the  Probate  of  the  Will,  and  of 
the  Administrator,  from  the  letters  of  Administration  ;  of 
these,  Profert  is  made  in  the  Declaration,  but  the  Plain- 
tiff is  not  called  upon  to  produce  them  at  the  Trial  at 
Nisi  Prius,  unless  the  Defendant  had  pleaded  "  .V<? 
unques  Executor  or  Administrator,  in  which  case  the  pro- 
duction of  the  Probate,  or  Letters  of  Administration  under 
the  Seal  of  the  Ordinary,  is  primd  facie  sufficient  for  the 
Plaintiff,  to  establish  the  death  of  the  Testator,  and 
Plaintiff's  right  to  sue. (/z) 

(5-)  2  H.  Black.  116. 

(A)  2  Esp.  N.  P.  C.  564.  1  Sid.  859.  Bull.  N.  P.  247.  1  Esp. 
Dig.  N.  P.  232.  plen. 


Of  the  Evidence  in  Assumpsit    [CHAP.  II. 

But  that  is  not  conclusive  on  the  Defendant :  he  may 
show,  that  the  deceased  had  bona  notabilia  in  different 
Diocesses,  and  that  the  Probate  produced  was  not  a 
Prerogative  one ;  that  is  matter  of  viva  voce  Evidence, 
showing  the  different  property  of  the  Testator,  and  where 
it  lay.  So  he  may  show,  that  the  Probate  is  not  of  suffi- 
cient extent ;  as  if,  for  example,  the  Suit  was  for  a  Bond 
due  to  Testator  for  £1000.,  and  the  sum  sworn  to  in  the 
Probate  was  under  100/.,  that  will  appear  on  the  face  of 
the  proceedings,  and  the  Plaintiff  cannot  recover. 

So  in  the  case  of  an  Administrator,  the  Defendant  may 
prove  that  the  Letters  of  Administration  were  recalled  ; 
that  is  done  by  the  Evidence  from  the  books  of  the 
Spiritual  Court  where  Administration  is  granted. 

The  Evidence,  in  Actions  against  Executors  and 
Administrators,  will  be  more  fully  treated  of  in  the  next 
Chapter.  It  may  be  sufficient  here  to  observe,  that  in 
Actions  against  them,  though  they  do  not  plead  non- 
assumpsit,  but  plene  administravit  only  ;  yet  the  Plaintiff 
is  bound  to  prove  the  extent  of  his  demand,  or  he  will  be 
entitled  to  a  verdict  for  1*.  only.(i) 


10.  Of  the  Evidence  in  Actions  by  and  against  Husband 
and  Wife — against  the  Husband  alone,  and  against  the 
Wife  alone. 

1.  In  the  case  of  Actions  by  Husband  and  Wife — it 
should  be  observed,  that  the  Wife  is  joined  with  her 
Husband  as  a  party  on  the  Record,  in  those  cases  only, 

(i)  Salk.  296. 


CHAP.  II.]          against  Husband  and  Wife.  99 

where  the  right  of  Action  would  survive  to  her,  or  where 
she  is  the  meritorious  cause  of  Action ;  that  is,  where  the 
cause  of  Action  accrues  in  her  right,  as  on  a  Bond  e.  g.  or 
for  any  simple  contract  debt  due  to  her  before  Marriage.  (&) 

In  all  cases,  therefore,  in  which  the  Plaintiffs  are  Hus- 
band and  Wife,  their  Marriage  should  be  proved.  This 
is  done  by  a  copy  of  the  Register  and  proof  of  cohabitation, 
or  the  testimony  of  a  witness  who  was  present  at  the 
ceremony  :  mere  reputation  will  not  be  sufficient. 

The  Plaintiffs  should  then  prove  the  demand,  and  that 
it  was  due  to  the  Wife  in  her  own  right,  and  before 
Marriage ;  as  e.  g.  if  she  followed  any  business  before 
Marriage,  or  a  Note  or  Bill  of  Exchange  was  given  to  her 
in  her  maiden  name.  In  the  former  case  the  business 
must  be  proved,  and  that  the  debt  arose  out  of  it ;  in  the 
latter,  the  writing  speaks  for  itself. 

2.  If  the  Wife  is  indebted  before  Marriage,  the  Action 
must  be  against  both  Husband  and  Wife,  and  cannot  be 
supported  against  the  Husband  alone. (/)  If  he,  therefore, 
is  sued  alone :  by  proving  that  the  debt  for  which  the 
Action  is  brought  was  contracted  before  Marriage,  the 
Plaintiff  will  be  non-suited ;  that  fact  will  appear  either 
from  the  Plaintiff'  's  witnesses,  or  by  direct  proof. 

But  though  in  Actions  by  Husband  and  Wife,  the 
Plaintiff  must  prove  an  actual  Marriage :  in  Actions 
against  them  as  Husband  and  Wife,  or  against  him  for.  a, 

(*)  1  Esp.  Dig.  N.  P.  153  to  158.  and  Cas.  ibid, 
(/)  7  Term  Rep.  348. 


100  Of  the  Evidence  in  Assumpsit      [CHAP.  II. 

demand  on  her  account ;  the  Plaintiff  is  called  upon  for  no 
such  proof,(?w)  it  is  sufficient  for  him  to  prove,  that  they 
passed  for  Man  and  Wife  with  his  consent,  as  by  suffering 
her  to  use  his  name  ;  in  which  case,  it  is  only  necessary 
for  the  Plaintiff  to  call  witnesses  to  establish  that  fact,  and 
then  to  prove  his  cause  of  Action  as  connected  with  it,  as^ 
ex.  gr.  goods  sold  to  her  for  wearing  apparel. 

Of  the  Evidence  for  the  Defendant  in  Actions  against  the 
Husband  and  Wife,  or  against  him  only,  for  debts  of  her 
contracting. 

For  debts  contracted  by  the  Wife  after  Marriage,  the 
Husband  must  be  sued  alone ;  and  it  will  be  necessary  to 
show,  what  Evidence  in  such  cases  he  may  give  to  meet 
such  demands. 

1.  The  Defendant  to  an  Action  for  goods  furnished  to 
his  Wife  may  show,  that  they  were  not  Necessaries,  or 

silited  to  his  rank  in  life.(w) 

• 

The  description  of  the  Articles  which  the  Plaintiff  goes 
for,  will  show  whether  they  are  necessaries  or  not,(o)  and 
that  may  depend  on  their  quantity,  or  the  charges  for 
them  ;  as  if  a  Mercer  sues  a  Defendant  for  silk  furnished 
to  his  Wife ;  the  Husband  may  be  liable  to  a  certain 
extent ;  but  if  they  are  extravagantly  expensive,  and  fur- 
nished to  the  Wife  of  a  man  in  moderate  circumstances  ; 
it  will  be  incumbent  on  the  Defendant  to  give  in  Evidence, 
what  his  circumstances  are,  and  show,  that  with  relation 
to  them,  the  demand  is  excessive ;  this  is  matter  of  viva 

(m)  Bull.  N.  P.  136.  (»)  1  Esp.  Dig.  N.  P.  153. 

(o)  1  Lev.  4. 


CHAP.  II.]         against  Husband  and  Wife.  101 

voce  Evidence,  but  such  Evidence  must  be  given.  Thus, 
e.  g.  if  the  Wife  of  a  Clergyman  runs  him  in  debt,  and  he 
is  sued,  he  may  show  the  amount  of  his  Preferment,  and 
that  it  is  inadequate  to  such  a  demand. 

2.  He  may  show  that  the   Tradesman,  by  collusion 
with  the  Wife,  ran  him  in  debt ;  that  he  furnished  her 
with  articles  concealed  from  her  Husband  ;  that  he  made 
her  debtor  in  his  books,  and  not  the  Husband,  (p) 

These  circumstances  are  matters  to  be  proved  by  wit- 
nesses ;  and  the  Plaintiff  should  have  notice  to  produce 
his  books. 

3.  The   Defendant  may   prove  notice  given    to   the 
Plaintiff,  not  to  trust  his  Wife,  previous  to  the  furnishing 
of  the  Goods  for  which  the  Action  is  brought,  (q) 

It  is  not  uncommon  for  a  Person  to  give  a  general 
notice  in  the  Newspaper  to  Persons  not  to  trust  his  Wife  ; 
that  general  notice  is  insufficient,  unless  it  is  brought  home 
to  the  Plaintiff.  The  Defendant  should  prove,  by  a 
witness,  the  giving  such  notice  verbally  to  the  Plaintiff,  or 
by  letter ;  in  the  latter  case,  the  Plaintiff  should  have  no- 
tice to  produce  the  letter,  and  if  not,  a  copy  be  proved ; 
if  it  could  be  proved,  that  the  Plaintiff  had  read  the  para, 
graph  in  the  Newspaper,  that  might  be  sufficient,  but  not 
otherwise. 

4.  The  Husband  may  give  in  Evidence,  that  the  Wife 

(A)  5  Taunt.  356. 

(y)  1  Esp.  Dig.  154.  1  Salk.  1 18. 


102  Of  the  Evidence  in  Assumpsit     [C HAP.  II. 

had  eloped  from  him,  and  was  living  away  from  him  when 
the  debt  was  contracted,  (r) 

This  fact  must  be  clearly  proved  by  witnesses.  Such 
as  the  leaving  of  her  Husband's  house,  the  place  of  her 
residence  when  she  had  the  goods,  and  her  never  being  at 
her  Husband's  house  during  the  time  ;  as  this  elopement 
is  often  adulterous,  if  it  can  be  proved,  that  when  so  living 
apart  from  her  Husband,  she  was  cohabiting  with  another 
man,  that  is  decisive  Evidence  for  the  Defendant. 

But  in  such  case,  the  Defendant  should  be  provided 
with  proof  to  show,  that  the  elopement  was  not  caused  by 
his  ill-treatment  of  his  Wife :  as  in  case  it  proceeded  from 
that  cause,  he  will  be  liable  for  necessaries,  (s) 

5.  The  Defendant  may  show,  that  his  Wife  lived 
apart  from  him,  but  that  she  had  a  separate  allowance  for 
her  support.  This  is  a  fact  to  be  proved  either  by  a 
Deed  of  Separation,  or  the  testimony  of  witnesses  who 
were  acquainted  with  the  Parties  ;  but  the  Husband  must 
go  further,  and  give  in  Evidence  at  the  Trial,  that  the 
allowance  he  gave  his  Wife  was  proportioned  to  his  cir- 
cumstances, and  was  regularly  paid.(£) 

If  the  Action  is  against  the  Wife  alone,  she  may  plead 
that  she  is  a  married  woman,  and  prove  her  marriage  as 
before  described :  but  the  Plaintiff  may  make  her  person - 

(r)  1  Esp.Dig.  154.  Salk.  119.  1  Stra.  647.  1  Stra.  706.  2  Stra, 
875. 

00  2  Stra.  1214.  3  Taunt.  421. 
(r)  4  Campb.  70. 


CHAP.  II.]        against  Parents  and  Masters.  103 

ally  liable  in  the  Action  by  proving. — 1.  That  the 
Husband  is  an  alien  enemy,  and  abjured  the  realm. — 2. 
That  he  has  been  transported  for  felony,  or  that  he  is  a 
foreigner,  and  not  amenable  to  the  laws  of  this  country. 
These  are  all  capable  of  viva  voce  proof :  but,  in  the  case 
of  Transportation,  the  Plaintiff  ought  to  have  a  copy  of  the 
Husband's  conviction,  and  proof  that  he  was  the  Person 
convicted  and  transported. 

1-1.   Of  the  Evidence,  in  Actions,  against  Persons  standing 
in  the  relation  of  a  Parent. 

A  Father  is  bound  to  provide  necessaries  for  his 
Children  under  age,  while  they  remain  part  of  his  family, 
or  where  he  gives  them  credit.  To  support  this  Action, 
it  is  necessary  to  show,  that  what  was  furnished  was 
suitable  to  the  Father's  circumstances  in  life ;  that  the 
child  was  at  that  time  part  of  his  family ;  and  that  what 
was  furnished  was  reasonable,  and  not  extravagant. 

3.  Of  the  Evidence  in  Actions  against  a  Person  standing 
in  the  relation  of  Master. 

A  Master  is  bound  by  a  contract  made  by  his  Servant, 
as  far  as  he  has  given  him  authority,  and  he  acts  within 
k ;(«)  and  where  the  Master  has  adopted  the  act  of  the 
Servant,  he  is  bound  by  similar  acts  of  the  Servant  after- 
wards.^) As  if  he  authorised  his  Servant  to  order  goods 
on  credit,  and  he  afterwards  paid  for  them  ;  if  the  Servant 
afterwards  orders  others,  of  which  he  defrauds  his  Master, 
the  Master  is  liable ;  but  if  the  Master  had  no  dealing 

(u}  1  Esp.  Dig.  N.  P.  140.  Salk.  442.        (.r)  1  Stra.  506. 


104  Of  the  Evidence  in  Assumpsit         [CHAP.  II. 

with  a  Tradesman  directly,  but  gave  money  to  his  Ser- 
vant to  pay  for  what  was  furnished,  and  the  Servant 
embezzles  the  money,  the  Master  is  not  liable.  Where 
an  Action  is  so  brought,  and  defended  on  these  grounds, 
the  Plaintiff  must  prove  the  delivery  of  the  goods  to  the 
Defendant,  that  the  Master  had  the  use  of  them,  and  then 
the  Master  is  called  upon  to  prove  that  he  regularly  gave 
the  money  to  the  servant  who  ordered  the  goods,  to  pay 
for  them :  and  unless  the  Plaintiff  can  prove  that  the 
Master  had  paid  debts  of  his  antecedent  contracting,  or  a 
direct  order  to  him  by  the  Master,  the  Plaintiff  will  be  non- 
suited. 

Such  is  the  Evidence  required  where  the  Parties  sue, 
or  are  sued  in  a  representative  and  relative  character ;  in 
addition  to  which  the  Plaintiff  must  prove  the  Counts  in 
his  Declaration  on  which  his  right  of  Action  is  produced ; 
as,  ex.  gr.  If  the  Action  is  Assumpsit,  by  the  Assignee 
of  a  Bankrupt,  for  goods  sold  and  delivered  by  the  Bank- 
rupt, in  addition  to  the  proof  of  the  regularity  of  the 
Commission,  by  the  several  necessary  steps  before-men- 
tioned, the  Plaintiff  must  prove  the  sale  and  delivery  of  the 
goods,  as  laid  down  before  in  page  66.  and  the  value  of 
them. 

4.  In  the  course  of  the  preceding  pages,  I  have  inci- 
dentally mentioned  the  Evidence  which  the  Defendant 
may  bring  forward  as  his  defence  in  those  particular 
cases.  I  shall  now  proceed  to  consider  the  particular 
Evidence  of  those  matters  of  defence  which  most  fre- 
quently occur,  and  are  applicable  to  the  Pleas  in  ah1  cases 
in  Assumpsit ;  and  show  in  what  manner  such  Evidence 
should  be  settled  in  order  to  furnish  a  complete  defence. 


CHAP.  II.]         under  the  General  Issue-  105 

1.   Of  the  Evidence  under  Non-Assumpsit^ 

Under  this  Plea,  every  thing  which  directly  disproves 
the  Plaintiff's  right  of  Action,  either  equitably  or  legally, 
may  be  given  in  Evidence  j  but  what  collaterally  dis- 
charges it  must  be  pleaded* 

As  if  the  Plaintiff's  claims  arise  out  of,  or  from  an 
illegal  act ;  as  for  money  charged  for  treating  Voters  at 
an  Election,  for  Stock-jobbing  differences,  or  any  contract 
prohibited  by  law  for  an  unconscientious  demand.  The 
Defendant  may  give  this  in  Evidence  under  the  Plea  o£ 
Non-Assumpsit»(y) 

As,  ex.  gr.  the  Statutes  having  declared,  afl  securities 
given  for  money  won  at  Play,  or  on  a  usurious  contract, 
to  be  void  ;  if  the  Plaintiff  declares  on  a  Bill  of  Exchange^ 
or  Note  of  Hand  ;  the  Defendant,  at  the  Trial,  may  under 
the  Plea  of  Non-Assumpsit,  give  in  Evidence  the  true 
consideration  for  which  the  Bill  or  Note  was  given, — 
Vid.  3  Term  Rep.  318.  2  Stra.  1249> 

Such  also  is  the  case  of  demands  which  cannot  be 
legally  enforced  against  the  Parties,  as  in  the  cases  of 
married  women  or  infants,  where  the  demand  is  not  for 
necessaries.  The  one  may  prove  her  marriage,  and  the 
other  his  nonage,  under  the  plea  of  Non-Assumpsit ;  for 
they  cannot  be  said  to  undertake  to  pay  that  for  which  by- 
law they  are  not  liable. 

So,  in  the  case  of  opprebsive,  unconscientious,  or  unjust 

L  Esp,l%.  N.  P.  109, 
0 


106  Of  the  Evidence  in  Assumpsit     [CHAP.  II. 

bargains  the  facts  may  be  given  in  Evidence  which 
establish  them  ;  for  the  law  will  not  enforce  such  bargains 
or  contracts,  (z) 

So  in  the  case  of  fraudulent  transactions,  (a) 

Lastly,  it  is  clear,  that  where  a  Plaintiff  has  sued  for 
what  he  gratuitously  undertook,  the  Defendant,  on  show- 
ing that  fact,  may  give  Evidence  of  it  under  Non- Assump- 
sit, for  under  such  circumstances  he  could  not  be  said 
to  undertake  to  pay  ;  and  so  in  a  variety  of  similar  cases. 

So  the  Defendant  may  show  that  the  Action  is  brought 
too  soon,  as  if  for  goods  sold  on  credit,  and  the  credit  is 
not  expired  ;  for  a  man  does  not  undertake  to  pay  before 
the  time  of  payment  agreed  on. 

In  all  these  cases  the  facts  are  proved  by  vivd  voce 
Evidence. 


Thus,  the  Plea  of  Infancy  is  proved,  by  showing  the 
time  of  the  Defendant's  birth.  This  may  be  done  by  call- 
ing his  Father,  or  Mother,  or  the  Nurse  who  was  present 
at  his  birth,  and  has  known  him  since.  So  it  may  be 
proved  by  an  entry  in  the  Family  Bible ;  or  the  Parish 
Register  of  the  birth,  specifying  the  time  when  the  De- 
fendant was  born  ;  and  by  the  testimony  of  Persons  who 
knew  his  Parents,  as  described  in  the  Registry ;  or  the 
hand-writing  of  the  Father,  in  his  Family  Bible,  if  he  is 
dead  i  but  these  latter  pieces  of  Evidence  should  be  carried 

(2)  Cowp.  793.  4  Term  Rep.   166. 
(a)  Dougl.  433. 


CHAP.  II.]         under  the  General  Issue.  107 

further,  by  proof  of  Persons  acquainted  with  the  family, 
that  the  Defendant  was  the  Person  mentioned  in  the  Fami- 
ly Bible  or  Register. 

This  Evidence  is  conclusive  if  the  Plaintiff  cannot 
answer  it,  which  he  can  do  in  two  ways. — 1.  By  showing 
that  the  demand  is  for  necessaries  suited  to  the  Infant's 
station  and  fortune  in  life ;  or, — 2.  That  the  Defendant 
made  a*  new  promise  to  pay  after  he  became  of  full  age. 

As  to  giving  those  matters  in  Evidence,  it  .must  be 
observed,  that  though  the  Defendant  may  give  Infancy  in 
Evidence  under  the  General  Issue  of  Non-Assumpsit :  if, 
he  pleads  his  infancy,  the  Plaintiff  replies  these  matters ; 
but  if  the  Defendant  does  not  plead  but  gives  infancy  in 
Evidence  at  the  Trial ;  the  Plaintiff  will  then  be  at  liberty 
to  show  those  matters  in  Evidence,  though  not  pleaded. 
If,  therefore,  it  is  expected  that  the  Defendant,  though  he 
has  pleaded  the  General  Issue,  means  to  rely  on  proof  of 
his  infancy,  and  the  Plaintiff  has  either  of  the  above 
answers  to  give  to  it,  he  should  be  prepared  with  Evi- 
dence to  that  effect  at  the  Trial. 

Thus,  in  an  Action  against  a  Defendant  for  a  livery  for 
a  Servant,  and  other  articles,  for  which,  as  an  Infant,  he 
would  not  be  liable,  the  Plaintiff  proved  that  the  Defen- 
dant was  an  Officer  in  the  Army,  and  that  such  things 
were  necessary  and  suitable  to  his  rank.  He  was  held  to 
be  liable  notwithstanding  his  infancy,  (b) 

The  Plaintiff  should  be  therefore  always  prepared  with 
(A)  8   Term  Rep.  578. 


108  Of  the  Evidence  in  Assumpsik.      [CHAP.  IL 

proof  at  the  Trial,  where  it  is  expected  that  infancy  will  be 
set  up  ;  of  the  Defendant's  actual  situation  in  life,  in  point 
of  fortune  and  rank. 

2.  Coverture  is  another  defence  of  the  same  description  ; 
and  may  also  be  pleaded,  or  given  in  Evidence,  under  the 
General  Issue.  How  that  is  to  be  proved  at  the  Trial,  vide 
page  113, 


3.  A  Release  may  also  be  pleaded,  or  given  in  Evidence 
iinder  the  General  Issue,  in  Assumpsit.     And  a  Release 
must  be  by  Deed  :  it  is  done  by  proving  the  execution  of 
it  by  the  subscribing  witness  ;  but  it  must  appear  to  have 
been  made  after  the  cause  of  Action  accrued  ;  otherwise, 
it  is  of  no  avail  :  that  will  appear  by  the  date. 

This  is  the  effect  of  a  Composition  Deed,  by  which 
the  Defendant  assigns  his  property  to  Trustees  for  the 
.benefit  of  his  Creditors,  and  which  Deed  contains  a  Re- 
lease. 

But  it  is  good  Evidence,  under  the  General  Issue,  though 
there  is  no  Deed,  for  the  Defendant  to  show,  (c]  that  the 
Plaintiff  agreed  to  take  a  Composition,  secured  by  collate- 
ral security,  in  lieu  of  his  Debt  :  such  as,  the  acceptance 
of  a  friend  of  the  Plaintiff's,  or  the  like,  and  which  was 
given  to  him  ;  or,  that  the  Plaintiff,  by  offering  to  come  in 
under  a  Composition  Deed,  induced  others  to  sign  it. 

4.  Payment  is  good  Evidence  under  the  General  Issue, 
and  cannot  be  pleaded  specially.     This  may  be  proved  by 

(c)  1  Esp.  N.  P.  C.  23/5. 


CHAP.  II.]         under  the  General  Issue.  109 

parol,  or  by  the  Plaintiff's  receipt ;  and  the  production  of 
a  receipt,  proved  under  the  Plaintiff's  hand,  is  primd  facie 
sufficient,  but  is  not  conclusive  Evidence.  The  Plaintiff 
may  show  what  the  circumstances  were,  and  that  he 
did  not  receive  the  money  at  the  time  the  receipt  pur-- 
ports, (d) 

5.  Usury  may  be  given  in  Evidence,  under  the  General 
Issue  in  Assumpsit;  but  is  confined  to  writing  instruments, 
as  Bills,  Notes,  &c.     This  is  proved  by  showing,  that  the 
security  was  given  on  a  transaction  on  which  there  was 
more  than  5  per  cent  received. 

6.  If  the  Action  is  for  Goods  sold,  the  Defendant  may 
give  in  Evidence  under  the  General  Issue,  that  they  were 
sold  on  credit,  which  is  not  expired;  and  this  time  of  cre- 
dit is  either  by  agreement  on  the  actual  sale,  or  the  usage 
of  Trade  ;  (e)  that  they  were  contraband,  or  unsaleable  ; 
that  they  were  sold  by  sample,  from  which  they  vary  ;  or 
any  ground  which  shows  it  to  be  unjust  to  charge  him  ;  or 
that  fraud  was  practised  on  him. 

But  matters  of  Law,  which  go  in  discharge  of  the  Action, 
must  be  pleaded,  and  proved  as  they  are  pleaded. 

Such  as — 

1.  The  Statute  of  Limitations.  In  this  case,  if  the  debt 
arises  under  a  written  Instrument,  in  which  the  time  of  pay- 
ment is  specified,  the  limitation  is  ascertained  by  the  lapse 

(rf)  2  Term  Rep.  366. 

Or)  1  Esp.  Dig.  N.  P.  112.  Cowp.  341.  5  Taunt.  18!. 


110  Of  the  Evidence  in  Assumpsit     [CHAP.  II. 

of  time  intervening  between  the  time  of  payment  and  the 
bringing  of  the  Action. 

In  every  case  of  this  sort,  as  'the  time  of  the  debt  be- 
coming due,  appears  by  the  Instrument,  the  time  of  the 
commencement  of  the  Suit  will  appear  by  the  Memoran- 
dum on  the  Record,  or  by  the  production  of  the  Writ,  or 
of  the  Copy  of  it  served  on  the  Defendant,  which  he  should 
have  ready  to  produce,  to  show  the  true  time  when  it  was 
sued  out. 

If  the  debt  arises  from  a  loan  of  money,  or  is  a  demand 
arising  from  any  thing  collateral,  where  there  is  no  writing 
to  ascertain  it,  as  on  a  claim  for  Rent ;  for  breach  of  an 
Agreement,  or  the  like  ;  the  Defendant  should  give  Evi- 
dence of  the  time  when  the  debt  was  due,  and  the  demand 
accrued,  and  then  of  the  commencement  of  the  Suit,  as 
before-mentioned.  This  Evidence  is-,  therefore,  composed 
of  written,  and  parol  Evidence ;  written,  by  producing  the 
Writ,  or  referring  to  the  Record,  and  parol  by  proof  of  the 
time  when  the  debt  accrued. 

What  is  stated  here  is  matter  of  Evidence,  where  the 
Plaintiff  joins  Issue  on  the  Plea  of  the  Statute  only :  but 
as  the  Plaintiff  may  reply  a  new  promise,  or  process,  sued 
out  to  save  the  Statute ;  in  the  former  case,  he  must  call 
a  witness  to  prove  the  promise  made  at  a  certain  time,  or 
Defendant's  hand- writing  to  a  letter,  or  the  like.  In  the 
latter,  he  must  produce  the  Writ,  when  the  time  of  suing 
it  out  will  appear,  which  he  must  show  returned,  and  the 
continuance,  if  any.  (f) 

(/)  Vid.  Cases,  l  Esp.  Dig.  N,  P.  187.  3  Term  Rep.  662. 1  Wils. 
167. 


CHAP.  II.]         under  the  Plea  of  a  Tender.  Ill 

2.  Bankruptcy  is  a  good  plea  in  Assumpsit.  (g) 

The  Evidence,  in  support  of  this  Plea,  which  is  given 
by  the  Statute,  is  the  production  of  the  Bankrupt's  Certi- 
ficate ;  it  is  not  usual  to  call  for  Evidence  of  the  Signatures 
to  it.  (h)  The  Plea  of  Bankruptcy  goes  to  the  Country, 
and  the  production  of  the  Certificate  is  prima  facie,  but  not 
conclusive  Evidence  for  the  Defendant :  for  concluding  to 
the  Country,  and  the  Plaintiff  not  being  admitted,  for  .that 
reason,  to  reply  the  special  matter,  he  is  forced  to  join  Is- 
sue ;  (i)  he  may,  therefore,  give  in  Evidence  a  new  pro- 
mise, made  by  the  Bankrupt  after  his  Bankruptcy ;  or,  that 
the  Certificate  is  void,  by  reason  of  the  Bankrupt's  having 
lost  money  at  Play,  &c. ;  and,  on  giving  that  Evidence,  if 
satisfactory  to  a  Jury,  the  Plaintiff  will  have  a  verdict. 
These  are  matters  of  fact,  and  proveable  by  witnesses 
who  heard  the  Bankrupt's  promise  to  pay,  or  saw  him 
lose  the  money  at  Gaming ;  but  the  Defendant  may  show, 
that  the  promise  was  conditional  only. 

A  Tender  must  be  pleaded.  (k) 

In  this  case,  the  Defendant  must  prove  the  offer  of  the 
sum  tendered,  in  money,  by  showing  the  actual  produc- 
tion of  the  sum,  either  in  specie,  or  in  a  bag,  or  purse  ; 
by  a  witness  who  tendered  it  to  the  Defendant,  or  saw  it 
tendered  :  (/)  and  he  must  be  able  to  prove  the  same  sum 
was  tendered  which  is  mentioned  in  the  Plea,  or  a  great- 

fe)  l  Esp.  Dig.  N.  P.  190. 

(A).  Ludford  v.  Barber,  1  Term  Rep.  86. 

(i)  Cowp.  544.  2  H.  Black.  1 16. 

(*)  1  Esp.  Dig.  N.  P.  194.  5  Co.  114.  6  Esp.  N.  P.  C.  46. 

(/)  Per  Lcblanc  J.  3  Campb.  70. 


112  Of  the  Evidence  in  Assumpsit     [CHAF.  IL 

er,  if  in  moneys  numbered,  or  in  Bank-notes,  tqgpvhich  the 
Defendant  made  no  objection ;  but,  if  the  Tender  is  in 
Bank-notes,  if  they  exceed  the  sum  pleaded  to  be  tender- 
ed, that  Tender  is  bad.  So,  if  the  Issue  is  on  a  subsequent 
demand,  or  refusal,  the  Plaintiff  must  prove  a  demand  of 
the  exact  sum  tendered,  (m)  But  the  sum  tendered  must 
always  be  produced  in  money,  or  Bank-notes,  so  that 
Plaintiff,  if  he  pleases,  may  count  it,  and  take  it,  if  he 
wishes  to  do  so ;  unless  he  refuses  to  take  it ;  as,  if  he 
says,  "  You  need  not  produce  it,  I  shall  not  accept  it."  (72) 
But,  in  that  case,  the  Defendant  must  be  able  to  prove, 
that  the  person  had  the  money,  ready  to  pay,  if  the  Plain- 
tiff would  have  accepted  it,  though  he  did  not  produce  it ; 
and  a  Tender  to  an  Agent  authorized  to  receive  the  mo- 
ney, is  good  :  but,  if  the  Defendant  relies  upon  a  Tender 
which  he  has  made  to  an  Agent,  he  must  prove,  that  such 
Agent  was  authorized  to  receive  it ;  as  to  the  Attorney, 
who  demanded  the  money  (for  example)  of  him  on  the  part 
of  the  Plaintiff,  (o) 

5.  A  Set  off  is  a  good  plea  in  Assumpsit,  or  in  Debt ; 
but  it  may  also  be  given  in  Evidence  where  the  General 
Issue  is  pleaded,  and  notice  has  been  given  of  it. 

A  Set  off  arises  in  cases  of  mutual  demand  ;  and  as  it 
is  a  claim  dh  the  part  of  the  Defendant  from  the  Plaintiff 
of  a  debt  due  to  him,  the  same  Evidence  is  required  on 
the  part  of  the  Defendant  to  establish  that  debt,  as  would 
be,  if  he  were  Plaintiff.  As,  e.  g.  if  the  Defendant  sets  off 

(TM)   1  Camp.  182.   1  Esp.  N.  P.  C.  68. 

(n)  Peake,  N.  P.  C.  88. 

(o)  1  Campb.  477.  2  Mau.  Sc  Selw.  86, 


CHAP.  II.]         under  the  Plea  of  a  Set  off  1 13 

a  debt,  due  by  the  Plaintiff  to  him,  for  goods  sold  and  de- 
livered, he  must  prove  the  sale,  delivery,  and  value  of  the 
goods,  by  the  mode  of  proof  before-mentioned  for  the 
Plaintiff:  if  he  claims  a  Promissory  Note  of  the  Plaintiff's, 
as  a  set  off,  he  must  prove  the  Plaintiff's  hand-writing; 
and  if  it  was  a  Note  indorsed  to  him,  he  must  prove  the 
Indorser's  hand-writing ;  and  so  in  other  instances. 

It  does  not  belong  to  this  Treatise  to  state,  what  debts 
can,  or  cannot,  be  set  off;  that  belongs  to  elementary 
books  :  (p)  it  is  sufficient  to  observe,  that  what  can  be  set 
off  must  be  an  existing,  and  liquidated  debt,  and  not  da- 
mages ;  and  such  as  can  be  recovered,  as  a  debt  at  law. 

O          ' 

But  every  description  of  debt,  of  whatever  nature ;  as,  by 
simple  contract,  Bond,  Judgment,  or  Record,  are  all  ob- 
jects of  set  oft*,  and  must  all  be  proved  in  the  same  way  as 
if  the  Plaintiff  had  declared  on  them.  As  a  Bond  may  be 
set  off,  and  the  subscribing  witness  must  be  called,  to  prove 
the  execution  of  it.  (9)  A  judgment  may  be  set  off ;  and  it 
must  be  proved  by  a  witness  producing  a  copy  examined 
with  the  Record,  (r] 

6.  Foreign  attachment  is  also  a  good  Plea.    Vide  post,  , 
ch.  of  Debt. 

(A)  Vid.  Cases  "in  I  Esp.  D.  N.  P.  263  to  268  fiasaitn.  Cowp.  57. 
6  Term  Rep.  488. 

(<7)  2  Bur.  1?29.  2  Black.  Rep.  826. 

(r)  Vid.  2  Burr.  1024.  4  Esp.  N.  P.  C.  207.  2  Term  Rep.  32. 
Bull.  N.  P.  180.  16  East.  36.  1  Term  Rep.  112.  5  Term  Rep.  493. 


&   . 
114  Of  the  Evidence  in  Debt         [CHAP.  III. 


CHAPTER  III. 


OF  SETTLING  THE  EVIDENCE  IN  THE  ACTION  OF  DEBT. 

A  HE  Action  of  Debt  is  maintainable  either  on  simple, 
or  on  special  contract,  or  matter  of  Record.  I  shall,  there- 
fore, first  consider  the  Evidence,  as  it  applies  to  the  con- 
tract, or  security ;  secondly,  as  it  applies  to  the  Person. 

1. — Of  settling  the  Evidence  in  Debt,  as  it  applies  to  the 

contract. 

Debt,  on  simple  contract,  in  respect  to  the  Evidence, 
differs  nothing  from  the  Action  of  Assumpsit ;  and  the 
Rule  for  settling  the  Evidence,  under  the  head  of  money 
lent,  goods  sold  and  delivered,  and  the  other  Counts 
founded  upon  contract,  in  that  Action,  is,  in  every  respect, 
the  same,  and,  where  the  Action  is  Debt,  may  be  refer- 
red to. 

Debt,  on  special  contract,  is — 1.  For  money  due  on 
Bonds. — 2.  For  Rent  reserved  by  Deed. — 3.  On  matters 
of  Record.  These  constitute  the  principal  heads,  and  will 
be  treated  of  in  their  order. 


CHAP.  III.]     on  Bond  for  payment  of  Money.  115 

1.   Of  the  Evidence  in  Debt  on  21  end. 

I  .   Of  Bonds  for  payment  of  Money. 

The  Declaration  in  debt  on  Bond  states,  that  the  De- 
fendant by  .his  writing  obligatory  bearing  date,  &c., 
became  bound  to  the  Plaintiff  in  /.  -  to  be  paid  to  the 
Plaintiff  or  his  Assigns.  The  breach  is,  that  he  had  not 
paid;  —  the  Declaration  concludes  with  Profert  of  the 
Bond. 

The  General  Issue  is  non  est  factum. 

In  this  case,  the  Plaintiff  is  bound  at  the  Trial  to  pro- 
duce the  Bond  itself,  when  he  has  declared  with  a  Profert  ; 
and  no  secondary  Evidence  will  be  admitted,  such  as  a 
copy,  though  the  original  is  proved  to  be  lost  ;  and  though 
in  one  case  it  was  proved  that  the  Defendant  had  taken 
away  .the  original,  and  said  he  had  burned  it,  secondary 
Evidence  was  refused.(a)  In  cases,  therefore,  where  the 
original  is  lost,  the  Plaintiff  should  not  declare  with  a 
Profert  :  but  state  the  Bond  to  be  lost  by  time  or  acci- 
dent, or  to  be  in  Defendant's  possession. 

The  Bond  being  produced,  it  must  be  proved  by  calling 
the  subscribing  witness  to  prove  the  execution  of  it  by  the 
Defendant,  and  the  delivery  of  it  as  his  Bond.(£) 

The  Rule  must  be  taken  as  general,  that  the  subscribing 
witness  must  be  called  in  this,  as  in  all  other  cases,  that 


(a)  Smith  -v.  Woodward,  4»  East.  585. 
£    Bull.  N.  P.  254. 


116  Of  the  Evidence  in  Debt  [CHAP.  Ill* 

is,  if  his  attendance  can  by  any  possibility  be  procured ; 
but  as  this,  it  sometimes  happens,  cannot  be  done,  the 
Courts  admit  inferior  Evidence,  that  is,  proof  of  the  hand- 
writing of  the  subscribing  witness,  and  of  the  obligor  of 
the  Bond,  In  settling,  therefore,  the  Evidence,  those 
cases  are  to  be  attended  to,  as  exceptions  to  the  general 
Rule.  But  in  all  cases,  the  Plaintiff,  where  he  does  not 
call  the  subscribing  witness,  must  account  for  why  he 
does  not  do  so,  by  calling  a  witness  to  prove  his  having 
used  exertions  to  get  him  subpoenaed,  and  showing  the 
circumstances  respecting  the  witness,  as  the  reason  why 
he  is  not  brought  forward. 

The  Courts  have,  however,  admitted  Evidence  of  hand- 
writing of  the  witness,  and  of  the  obligor,  as  proof  of  the 
execution  of  the  Bond,  in  the  following  instances  : — (c) 

1.  Where  the  witness  has  proved  to  have  gone  abroad? 
and  to  be  so  at  the  time  of  the  Trial,  so  as  not  ,to  be 
amenable  to  the  process  of  the  Court;  as  if  an  Officer  or 
Sailor  is  absent  on  service,  ex.  gr.  or  there  is  any  other 
cause  to  account  for  his  absence  :  but  full  proof  of  both 
facts  is  required,  (d] 

2.  Where  it  was  proved  that  the  witness  had  absconded, 
and  could  not  be  found,  as  where  he  had  absconded  to 
avoid  his  Creditors  ;(<?)   or  had  not  surrendered   to  his 
Commission,  though  declared  a  Bankrupt :    but  in  all 
cases,  Evidence  must  be  given  of  diligence  and  inquiry  at 
the  places  where  the  witness  had  been  known  to  reside  or 

(c)  l  Esp.  Dig.  N.  P.  282. 

(rf)  Dougl.  89,  7  Term  Rep.  266.  1  Campb.  171.1  Taunt.  364. 

(e)  2  East.  183.  1  Campb.  304.  1  Taunt.  364. 


CHAP.  III.]  on  Bonds  or  Deeds.  117 

frequent,  and  inquiries  made  of  Persons  to  whom  he  was 

known,  (f) 
\ 

In  fact,  the  Rule  as  requiring  the  calling  of  the  sub- 
scribing witness  in  all  cases  must  be  noticed  :  and  where, 
from  any  circumstances,  it  is  proved  that,  after  very 
diligent  search  and  inquiry,  the  witness  cannot  be  found, 
secondary  Evidence,  that  is,  of  his  hand-writing,  is  ad- 
mitted. 

In  this  respect,  these  points  are  to  be  observed  in 
proving  the  execution  of  Bonds  and  of  other  Deeds. 

1.  If  there  is  no  subscribing  witness,  it  is  sufficient  for 
the  Plaintiff  to  prove  the  hand- writing  of  the  Defendant,  or 
his  admission. (#) 

2.  If  the  subscribing  witness  is  proved  to  be  dead, 
proof  of  his  hand- writing  is  sufficient ;  and  if  there  are 
two  subscribing  witnesses,  one  dead,  and  the  other  beyond 
the  sea,  proving  the  hand-writing  of  him  that  is  dead  is 
sufficient.^) 

3.  Where  from   change   of   circumstances    he    has 
become  a  Party  on  the  Record :  as  if  the  Obligee  had 
made  the  subscribing  witnesses  his  Executor :  this  fact 
being  established,  Evidence  of  his  hand-writing  will  be 
sufficient.(e) 

4.  Where  the  witness  has  become  infamous  from  a 

(/)  2  Campb.  282.  ($•)  1  Esp.  Dig.  N.  P.  282. 

(A)2Atk.48.  (j)  1  Stra.  3^f « 


118  Of  the  Evidence  in  Debt  [CHAP.  III. 

conviction,  and  so  inadmissible,  proof  of  his  hand-writing 
will  be  sufficient,  (k) 

5.  If  a  fictitious  name  is  put  to  a  Bond  as  a  subscrib- 
ing witness,  on  proof  that  it  is  so,  it  will  be  sufficient  to 
prove  Defendant's  hand- writing. (/) 

And  this  Rule,  requiring  the  subscribing  witness  in  all 
cases  to  be  called  where  he  can  be  procured,  (m)  is  carried 
so  far,  that  the  obligee  is  not  suffered  to  admit  his  own 
hand- writing ;  and  even  when  on  an  examination  on  oath 
he  admitted  it  in  a  Deposition  before.  Commissioners  of 
Bankrupts,  such  Deposition  was  not  allowed  as  Evidence 
of  his  execution  of  it. 

2.   Of  the  Evidence  in  Debt  on  Sail  Bonds. 

This  Action  may  be  against  the  original  Defendant,  or 
against  the  Bail.  If  the  Action  of  Debt  is  on  a  Bail  Bond 
against  the  Bail,  it  is  either  by  the  Sheriff  to  whom  it  is 
given,  or  by  the  Assignee  of  the  Sheriff,  under  the  Statute  of 
Anne.  The  Declaration,  if  by  the  Assignee,  sets  out  the  issu- 
ing of  the  Writ  in  the  original  Action  ;  the  delivery  to  the 
Sheriff;  the  arrest  of  the  Defendant ;  that  the  Defendant 
in  the  present  Action  became  Bail  to  the  Sheriff,  condition- 
ed for  the  Defendant's  appearance  at  the  return  of  the 
Writ ;  that  the  Defendant  did  not  appear  according  to 
the  condition  of  the  Bail  Bond ;  and,  lastly,  the  assign- 
ment of  the.  Bond  by  the  Sheriff  to  the  Plaintiff:  if  the 
Plea  is  non  est  factum,  the  Plaintiff  need  only  prove  the 
execution  of  the  Bail  Bond  itself  by  the  subscribing 

(k}  2  Stra.  833^  (7)  Peake's  N.  P.  C.  23. 

(m)  Doug.  2f»4  East.  53. 


CHAP.  III.]  on  Bail  Bonds.  119 

witness  as  laid  down  before  ;  for  though  the  Declaration 
contains  many  averments,  and  the  title  to  sue,  is  derived 
from  the  assignment  by  the  Sheriff  in  pursuance  of  the 
Statute,  as  that  is  by  Indorsement  only,  and  not  by  Deed, 
the  only  Deed  mentioned  in  the  Declaration  is  the  Bond, 
the  Plea  applies  to  it,  and  it  is  the  only  Issue  on  the 
Record ;  so  that  the  execution  of  it  being  proved  by  the 
subscribing  witness,  the  Plaintiff  is  entitled  to  a  verdict. 

It  is,  however,  not  unusual,  as  a  trick  in  this  Action,  to 
plead  nil  debet ;  which  is  a  bad  Plea  in  law,  and  should  be 
demurred  to  :  but  if  suffered  to  stand,  and  Issue  is  joined 
on  it,  in  that  case  the  Plaintiff  is  bound  to  prove  every 
averment  in  the  Declaration,  viz.  "  The  issuing  of  the 
Writ,  the  arrest  of  the  Defendant,  the  execution  of  the 
Bond,  and  the  assignment  by  the  Sheriff." 

3.   Of  the  Evidence  in  Debt  on  Bonds  of  Indemnity. 

If  the  Bond  sued  on  is  an  Indemnity  Bond,  or  for  per- 
formajice  of  Covenants,  so  that  no  specific  sum  of  money 
appears  to  be  due  on  the  face  of  it,  but  is  to  be  decided  by 
the  damages  .to  be  found  by  a  Jury  on  the  breaches  to  be 
assigned,  and  non  estfactwn  is  pleaded,  the  Plaintiff  in  that 
case  must  assign  breaches  under  Stat.  4.  and  5.  Wm.  III. 
That  was  formerly  done  in  the  Replication ;  but  the  usual 
course  now  is,  for  the  Plaintiff  to  set  out  the  condition  of 
the  Bond,  and  assign  the  breaches  in  his  Declaration. 
But  if  the  Plaintiff  declares  generally  on  the  Bond,  and 
the  Defendant  craves  oyer  of  the  condition,  and  pleads 
performance,  the  Plaintiff  in  his  Replication  sets  out  the 
breaches  on  which  Issue  is  joined. 

In  these  cases,  if  non  estfactum  is  pleaded,  the  Plaintiff 


120  Of  the  Evidence  in  Debt  [CHAP.  III. 

must  prove  the  execution  of  the  Bond,  and  then  give  Evi- 
dence of  the  breaches. 

As  if  the  Bond  was  to  indemnify  a  Party  who  had  taken 
a  Clerk,  and  the  condition  was  for  his  faithful  service,  and 
accounting  for  all  moneys  of  the  Plaintiff's  which  he  should 
receive,  and  the  Plaintiff  assigned  a  breach,  that  the  Clerk 
received  from  A.  B.  a  certain  sum  of  money  belonging  to 
him,  which  he  had  not  accounted  for.  He  must  call  A. 
B.,  or  some  other  witness,  to  prove,  that  A.  B.  paid  him 
such  a  sum  of  money  on  the  Plaintiff's  account ;  and  it 
will  lie  on  the  Defendant  to  prove,  that  he  did  account 
for  it. 

4.  If  the  Bond  is  for  performance  of  Covenants  in  a 
Lease,  or  Indenture,  the  Plaintiff  must  produce,  and 
prove  the  execution  of  the  Lease,  or  Indenture  of  De- 
mise, as  well  as  the  Bond  ;  by  the  subscribing  witness  ; 
and  then  give  Evidence  as  to  the  Covenant  broken,  by 
calling  a  witness,  to  prove  the  fact.  He  must  then  prove 
the  sum  at  which  he  ascertains  his  damages. 

5.  Of  the  Evidence  in  Debt  on  Annuity  Bonds. 

V 

If  the  Action  is  on  an  Annuity  Bond  or  Deed  to  recover 
arrears  of  the  Annuity,  the  Plaintiff  must  prove  the  exe- 
cution of  the  Deed,  and  also  that  the  Grantor,  or  Person 
for  whose  life  the  Annuity  was  granted,  is  living. 

6.  If  the  Action  is  on  a  Bond  for  the  performance  of  an 
Award,  the  Plaintiff  must  prove  the  execution  of  the  Bond, 
and  then  the  Award  must  be  produced,  and  the  execution 
of  it  by  the  Arbitrator  be  also  proved  :  if  there  is  a  sub- 
scribing witness  to  it,  he  should  be  called  to  prove  it :  if 


CHAP.  III.]     on  Annuity  Bonds,  and  for  Rent.  121 

there  is  any  thing  in  the  Award  by  which  the  Plaintiff  is 
required  to  do  any  thing  previous  to  his  suing  for  the  money 
awarded,  he  must  prove  by  a  witness  that  he  has  done  it , 
and  he  should,  lastly,  prove  a  demand  of  the  money  from 
the  Defendant,  or  that  he  attended  at  the  place  where  the 
Arbitrator  had  directed  it  to  be  paid,  and  that  no  one 
attended  to  pay  it.(w) 

7.  Bonds  are  suable  against  the  Heir,  or  Executor  of 
the  Obligor.  Where  such  an  Action  is  brought,  in  addi- 
tion to  proving  the  Bond,  in  which  it  must  appear  from 
the  words,  that  the  Obligor  bound  his  Heirs,  Executors, 
or  Administrators,  the  Plaintiff  must  prove  the  Defendant 
to  be  Heir  to  the  Obligor,  by  calling  a  witness  who  knew 
the  Obligor,  and  his  family,  and  that  the  Defendant  is  his 
Heir  at  Law.  If  the  Defendant  is  sued,  as  Executor,  or 
Administrator,  the  book  from  the  Commons,  in  which  are 
the  entries  of  Probates,  and  Administration,  should  be  pro- 
duced by  an  Officer  of  the  Court. 

II.   Of  the  Evidence  in  Debt  for  Rent. 

This  Evidence  is  different  where  it  is  reserved  on  a  lease, 
or  on  a  parol  demise,  though  in  both  the  Declaration  is 
general. 

If  the  Action  is»Debt  for  Rent  reserved  by  Lease,  and 
non  est  factum  is  pleaded  :  the  Plaintiff  has  only  to  prove 
the  execution  of  the  Lease  by  the  subscribing  witness, 
and  state  how  much  Rent  is  in  arrear ;  if  he  goes  for  more 

(n)  2  Marsh,  Rep.  304. 


122  Of  the  Evidence  in  Debt        [CHAP.  III. 

than  is  due,  the  Defendant  may  prove  the  Rent  really  due, 
by  showing  when  he  last  paid  ;  and  though  the  Defend- 
ant may  prove  the  Rent  really  due,  by  showing  when  he 
last  paid  ;  and  though  the  Defendant  holds  under  a  Lease, 
or  Indenture,  of  Demise,  the  Plaintiff  is  not  required  to 
prove  any  entry,  or  occupation,  by  the  Defendant ;  but 
if  the  Action  was  Debt  for  Rent  on  a  parol  demise,  or  not 
under  Seal,  Plaintiff  must  prove  actual  entry  and  occupa- 
tion, (o) 

If  the  Defendant  plead  riens  en  arrere,  alone,  the  Issue 
lies  upon  him,  and  he  must  prove  payment. 

If  the  Action  is  Debt  under  the  Stat.  4.  Geo.  IT.  c.  28, 
for  double  the  value  of  the  Premises,  which  the  Defendant 
held,  as  Tenant  to  the  Plaintiff,  and  held  over  after  notice  : 
the  Plaintiff  must  prove  the  antecedent  Tenancy  of  the 
Defendant  to  him,  as  Landlord,  and  when  his  Tenancy 
regularly  ended  ;  that  he  had  notice  to  quit,  which  cor- 
responded with  his  holding,  that  is,  if  his  Tenancy  expired 
at  Michaelmas,  the  notice  must  do  so  too  :  this  must  be 
proved,  by  the  Person  who  served  the  notice  to  quit  on 
the  Defendant,  the  Tenant ;  and  the  Defendant  should 
have  notice  to  produce  the  original.  The  Plaintiff  should 
also  regularly  prove  a  demand  by  him  of  the  possession  on 
expiration  of  the  notice  to  quit,  (The  notice  to  quit  has 
been  held  to  be  a  sufficient  demand  in  Williamson  v.  Col- 
ley,  5  Burr.  2694.  But,  query,  as  the  word  demand  is 
used  in  the  Stat.)  and  that  the  Defendant  did  not  deliver 
up  the  possession ;  and,  lastly,  the  value  of  the  Premises 
let.  The  Rent  reserved,  is  usually  taken  as  the  value .: 

(o)  Bellasis  v.  Burbach,  1  Salk.  209. 


CHAP.  III.]        for  Rent,  or  under  Statute.  123 

but  the  Plaintiff  is  not  bound  by  it,  but  may  bring  wit- 
nesses to  prove  the  actual  value,  which,  in  the  cases  of 
old  Leases,  usually  much  exceeds  the  Rent. 

If  the  Action  is  under  the  Stat.  11  Geo*  II.  c.  19.  to  re- 
cover double  Rent  after  a  notice  to  quit,  by  the  Tenant,  the 
same  Evidence  of  Tenancy  must  be  given,  as  above  sta- 
ted. The  Plaintiff  must  then  produce,  and  prove,  the 
notice  of  quitting,  by  proving  the  service  of  the  notice  on 
him,  and  prove  Defendant's  hand-writing,  if  his  name  is 
subscribed  to  it ;  or,  that  it  was  given,  and  served,  by  his 
authority.  He  must  then  prove,  that  the  Tenant  did  not 
quit  at  the  time  specified  in  the  notice ;  and,  lastly,  the 
yearly  Rent,  under  which  he  held. 

If  the  Action  is  Debt,  for  three  years'  Rent  of  the  Pre- 
mises, by  reason  of  the  Tenant*  snot  having  givennotice  of  an 
Ejectment  served  on  him,  by  which  there  has  been  a  re- 
covery In  lEjectment :  the  Plaintiff  must  prove,  that  the 
Defendant  was  his  Tenant ;  and  that  an  Ejectment  was 
served  on  him.  This  Evidence  must  be  had  from  the 
Lessor  of  the  Plaintiff,  or  rather,  from  his  Attorney,  by  a 
subpoena  duces  tecum  of  the  Declaration  and  proceedings 
in  Ejectment,  and,  by  calling  the  Person  who  served  the 
Declaration  in  Ejectment  on  the  Tenant,  (the  Defendant ;) 
this  witness  may  be  found  out  by  examining  the  Affidavits 
filed  with  the  Cleik  of  the  Rules  for  Judgment  against  the 
casual  Ejector,  if  not  otherwise  to  be  found  out ;  and  last- 
ly, the  Judgment  in  Ejectment,  and  the  Writ  of  Posses- 
sion executed,  the  former  by.  an  examined  copy  of  it,  the 
latter  by  proving  a  Warrant  made  out  on  the  Writ  of  Pos- 
session to  the  Sheriff's  Officer,  who  must  also  have  a  sub- 


124  Of  the  Evidence  in  Debt  [CHAP.  IIL 

poena  duces  tecum  of  the  Warrant,  and  prove  that  he  had 
executed  it. 

If  an  Assignee  of  the  Reversion  brings  debt  for,  Rent, 
he  must  prove  all  the  assignments  from  the  original 
Lessor,( p)  and  call  the  subscribing  witnesses,  if  by  Deed  j 
if  any  are  by  Will,  he  must  prove  the  Will,  or  if  the  Les- 
sor was  himself  only  Tenant  for  years,  Probate  of  his  Will 
will  do. 

In  Debt  for  Rent,  not  under  Seal,  the  Evidence  is  the 
same  as  in  Assumpsit  for  Use  and  Occupation. 

III.   Of  the  Evidence  in  Debt  on  matters  of  Record. 

In  Debt  on  Recognisances  of  Bail  against  the  Principal,, 
the  Evidence,  in  this  case,  depends  on  the  Plea. (2)  The 
Recognisance  itself  is  matter  of  Record ;  and  if  Defendant 
pleads  nul  tiel  Record,  it  is  tried  by  the  Court ;  so  is  the 
Judgment  recited  in  the  Declaration.  But  he  may  plead 
to  the  Country,  as  payment,  or  render  of  the  Principal  in 
due  time.  The  first  is  a  matter  of  fact  to  be  proved,  as 
before  stated,  in  the  case  of  payment :  if  he  pleads  a  ren- 
der, he  must  give  in  Evidence  the  Book  of  the  Marshal 
of  K.  B.  or  the  Warden  of  the  Fleet,  to  be  produced  by 
the  Officer,  or  an  examined  copy  of  the  render  as  entered 
there,  by  which  the  true  time  of  it  will  appear. 

If  the  Debt  is  against  one  of  the  Bail  on  the  Recogni- 
sance, he  may  plead  the  same  Pleas,  and  give  the  same 
Evidence  as  just  now  stated  in  the  case  of  the  Principal : 

C/0  Vid.  Esp.  .N.  P.  Dig.  243.      (?)  Chitty,  Plead.  2d  Ed.  220. 


CHAP.  III.]  On  Matters  of  Record.  125 

but  he  may  also  plead,  and  prove,  the  death  of  the  Princi- 
pal before  the  return  of  the  ca.  sa.  issued  in  the  Cause, 
or  that  no  ca.  sa.  issued.  (/?) 


If  the  Action  is  Debt  on  Judgment. 

The  Judgment,  when  recovered,  being  matter  of  Re- 
cord, when  Plaintiff  declares  on  it,  and  Defendant  pleads 
to  the  country,  as  payment,  e.  g.  an  office,  or  attested  co- 
py of  the  Judgment,  produced  by  a  witness,  who  examin- 
ed -it  with  the  original,  and  proof  that  it  is  a  correct  copy, 
is  sufficient  Evidence  for  the  Plaintiff.  Evidence  of  the 
payment  lies  on  Defendant. 

But  Debt  also  lies  on  foreign  Judgments :  but  they  are 
not  considered  as-  matters  of  Record,  so  that  the  mere  pro- 
duction of  a  copy  of  the  Judgment  is  sufficient :  they  are 
required  to  be  further  authenticated.  They  are,  as  ex- 
pressed by  Ld.  C.  J.  Eyre,  2  H.  Black.  410.  primd  facie 
Evidence  of  a  Debt,  and  have  the  force  of  a  simple  con- 
tract. They  are,  therefore,  so  declared  on,  and  then  are 
thus  proved  :(q)  Judgments  from  the  Courts  in  the  West 
India  Islands,  or  Colonies  abroad,  are  given  in  Evidence 
here,  by  producing  a  copy  of  the  Judgment  under  the  Seal 
of  the  Court ;  a  copy,  though  authenticated  by  an  Officer 
of  the  Court,  will  not  be  sufficient,  even  though  it  were 
signed  by  the  Judge  of  it.(r)  It  is  then  necessary  to  prove 

that  the  Seal  affixed  to  the  Copy,  is  the  Seal  of  the  Island, 

.• 

(/O   1  Esp.  Dig.  N.  P.  226.  Cro.  El.  733.  2  Stra.  915.  4'Buriv 
2134. 
(?)  Walker  r>.  Witter.    Dougl.  1.  (r)  2  Starkie,  6. 


126  Of  the  Evidence  in  Debt          [CHAP.  III. 

or  Colony,  without  which,  it  is  inadmissible  ;  and  proof  of 
the  Judge's  hand  is  not  sufficient.^) 

Judgments  from  Ireland,  and  Scotland,  are  proved  by  an 
examined  Copy  of  the  Judgments  there,  produced  by  the 
Person  who  examined  them,  and  who  must  swear  to  their 
being  correct. 

I  shall  now  consider  the  Evidence  in  Actions  of  Debt, 
which  respect  the  Person,  and  the  Rules  as  to  establishing 
the  character  in  which  the  Plaintiff  sues,  or  the  Defendant 
is  sued,  as  where  .the  Action  is  by,  or  against,  Husband 
and  Wife,  or  by,  arid  against,  Executor  or  Administrator, 
are  the  same  as  before  laid  down. 

I  shall,  therefore,  only  observe  on  the  most  useful  and 
important. 

1.   Of  the  Evidence  in  Debt  against  the  Sheriff. 

Debt  lies  against  the  Sheriff,  for  an  escape  of  a  Defend- 
ant in  execution ;  and  the  whole  sum  will  be  recovered 
with  which  he  was  charged  in  execution.(j) 

The  Evidence  which  must  be  brought  on  the  part  of 
the  Plaintiff  is, — 1.  The  attested  Copy  of  the  Judgment 
recovered  in  the  original  Action  against  the  Person  who 
escaped. — 2.  The  Plaintiff  next  is  to  prove,  a  Writ  of  ca- 
pias ad  satisfaciendum  obtained  on  that  Judgment,  directed 
to  the  Sheriff,  and  the  delivery  of  it  to  the  Sheriff,  and  a 
Warrant  made  out  on  it,  directed  to  some  officer  of  the 

(*)  4  Esp.  N.  P.  C.  228.  (0  Esp,  Dig.  N.  P.  235, 


CHAP.  III.]      171  Actions  against  the  Sheriff.  127 

Sheriff  who  arrested  the  Defendant :  his  actual  caption  by 
the  Officer  must  be  proved  ;  and  after  such  caption,  that 
the  Defendant  was  seen  at  large. 

The  Copy  of  the  Judgment  is  had  at  the  Treasury,  and 
must  be  proved  by  the  witness  who  examined  it.  The 
Writ,  which  must  be  proved  to  have  been  delivered  to  the 
Sheriff,  is  returned,  and  filed,  at  the  same  place  ;  in  which 
case,  the  Defendant  must  have  an  attested  Copy  of  the 
Writ,  and  Return,  proved  by  a  witness  in  the  same  way ; 
and  it  will  also  show  for  what  sum  the  Writ  was  marked, 
and  that  proves  these  averments  :  and  if  there  is  also  his 
return  of  cepi  corpus,  it  also  establishes  the  fact  of  the  ac- 
tual arrest ;  and  then  the  whole  of  the  remaining  Evi- 
dence is,  that  after  that  return  the  Defendant  was  seen  at 
large. 

2.  If  the  Action  is  against  the  Sheriff  on  Stat.  29  Eliz. 
c.  4.  That  Action  is  usually  at  the  suit  of  the  Defend- 
ant, under  the  Execution  against  whose  goods  an  over 
lev£  has  been  made.  The  Plaintiff  must  prove  the  suing 
out  of  a  Writ  of  fi.fa.  directed  to  the  Sheriff,  and  deliver- 
ed to  him.  The  sale  by  the  Sheriff  must  be  proved  by 
the  same  Evidence  as  before,  and  the  amount  of  the  levy, 
and  what  has  been  paid  over  to  him  :  if  the  Sheriff  has 
charged,  (exclusive  of  what  is  allowed  by  Stat.  43  Geo. 
III.)  more  than  the  poundage  allowed  by  the  Stat.  29 
Eliz.  which  is  ascertained  by  deducting  all  the  regular 
charges  from  the  sum  levied ;  on  Evidence  of  that  so 
made  out,  the  Plaintiff  is  entitled  to  recover. (u) 

So  if  the  Defendant  is  taken  under  a  ca.  sa.  and  the 
(«)  1  Esp.  Dig.  N.  P.  236.     2  Term  Rep.  238. 


128  Of  the  Evidence  in  Debt  [CHAP.  III. 

Sheriff  makes  the  Plaintiff  pay  more  to  him  than  he  is 
entitled  to  as  before  stated,  as  allowed  by  the  Statute  and 
proves  that  fact,  he  will  be  entitled  to  recover  the  penalty. 

This  Action  will  also  lie  against  the  Marshal  of  K.  B., 
the  Warden  of  the  Fleet,  or  any  Gaoler  having  the  custody 
of  Persons  for  Debt. 

In  these  Actions,  the  Plaintiff  must  prove  the  Judg- 
ment against  the  Defendant  who  escaped,  as  in  the  last 
Precedent ;  and  then  prove  the  committitur  to  the  custody 
of  the  Marshal,  Warden  of  the  Fleet,  or  other  Gaoler,  in 
this  way.  He  should  procure  a  copy  of  the  committitur 
from  the  books  of  the  Prison,  by  which,  it  will  appear, 
that  the  Party  was  in  custody,  arid  for  what  sum.  He 
should  give  notice  to  produce  the  original  book  at  the 
Trial ;  and  he  should  then  prove  by  a  witness  who  knew 
the  Person  of  the  original  Defendant,  that  he  was  seen  at 
large  after  his  having  been  so  in  custody. 

Debt  is  also  the  mode  of  declaring  for  penalties  uMer 
Penal  Statutes,  and  lies  at  the  Suit  of  an  Informer. 

It  would  be  extending  the  subject  of  this  Treatise  too 
far,  to  go  into  all  the  cases  of  Debt  on  Penal  Statutes ;  it 
is  sufficient  to  observe,  that  the  strictest  Evidence  is 
required  to  bring  the  Defendant  within  them:  and,  in 
settling  the  Evidence,  it  ought  never  to  be  done  without 
having  the  Statute  open,  and  seeing  that  there  is  Evidence 
to  satisfy  every  thing  which  the  Statute  requires.  Thus, 
for  example  in  Debt,  for  killing  Game  without  a  qualifica- 
tion, under  Stat.  5  Anne,  c.  14. 

The  Evidence,  required  in  this  case,  is  the  fact  of  the 


CHAP.  III.]      against  the  Sheriff  or  Gaolers.  129 

Defendant  using  a  gun  or  snares  to  destroy  the  Game ; 
which  is  done  by  a  witness  who  saw  the  fact :  but  it  is  not 
sufficient  to  obtain  a  Verdict,  that  the  Defendant,  being 
unqualified,  was  seen  with  a  gun :  he  must  be  proved  to  have 
been  using  it.  That  is,  the  Evidence  must  show  that  he 
was  seen  beating  for  Game,  or  firing  at  them,  which  would 
leave  no  doubt  that  he  was  using  it  for  the  destruction  of 
the  Game.  But  the  Evidence  required,  where  the  Action 
is  for  exposing  Game  for  Sale,  is  not  so  strict.  Proof  of 
the  actual  Sale  of  it  is  not  required,  as  the  fact  of  its  being 
seen  in  the  unqualified  Person's  possession  is  suffi- 
cient, which,  if  proved  by  a  witness,  is  sufficient ;  but 
the  reason  of  this  is,  that  it  is  declared  to  be  so  by  the 
Statute.  In  other  cases  of  Penal  Actions  the  strictest 
proof  is  required. 

Such  is  the  Evidence  on  the  part  of  the  Plaintiff;  that 
which  is  to  be  brought  on  the  part  of  the  Defendant 
depends,  of  course,  on  the  Issue,  and  I  shall  consider  it 
under  the  different  Pleas. 

The  usual  Pleas  in  Debt  on  Specialty,  for  payment  of 
money,  are,  non  e-stfactum,  solvit  ad,  or  post,  diem. 

1.  Under  720/2  estfactum,  pleaded  to  Debt  on  Bond,  the 
Defendant  may  give  in  Evidence,  what  shows  it  to  be 
void  on  the  face  of  it,  as  well  as  what  denies  the  execution, 
or  that  he  ever  delivered  it  as  his  Deed. 

Such  as  rasure,  interlineation,  or  breaking  off  of  the 
Seal;  any  of  which  appearing,  render  the  Bond  void.(t>) 

.(•v)  Esp.  Dig- 251.  Cro.  El.  626. 
R 


130  Of  the  Evidence  in  Debt  [CHAP.  Ill 

These  facts  will  appear  on  the  production  of  the  Deed, 
the  Plaintiff  being  bound  to  produce  and  prove  the  execu- 
tion of  it,  when  non  est  factum  is  pleaded. 

So  the  Defendant  at  the  Trial  may,  under  that  Issue, 
give  in  Evidence  that  he  never  delivered  it  as  his  Deed ; 
or  that  it  was  made  to  the  Plaintiff's  Wife,  and  that  he 
refused  to  receive  it ;  or  that  it  was  delivered  as  an  escrow  ; 
that  there  has  been  an  erasure  in  a  material  part,  or  an 
alteration,  (a?) 

So  in  the  case  of  a  Bail  Bond — as  it  is  founded  on  a 
Writ,  and  is  given  for  the  appearance  of  a  Defendant  at 
the  return  of  the  Writ  :(z/)  the  Bond  being  proved — the 
Defendant  by  either  producing  the  Writ,  or  relying  on  it 
as  stated  in  the  Declaration,  and  then  referring  to  the  date 
of  the  Bail  Bond ;  if  it  appears  to  be  subsequent  to  the 
return  of  the  Writ,  it  shows  it  to  be  void  ;  for,  being  after 
the  return  of  the  Writ,  the  condition  could  never  be 
performed,  it  being  for  the  Defendants'  appearance  at  the 
return. 

Wherever,  therefore,  it  appears  on  the  face  of  the  Bond 
that  it  is  void,  it  may  be  given  in  Evidence  under  non  est 
factum.  But  extrinsic  matters  which  avoid  the  Bond  in 
law,  must  be  pleaded  and  proved,  as  Usury ;  that  the 
Bond  was  given  for  an  illegal  purpose,  as  Simony  ;  for 
money  won  at  Play ;  for  the  sale  of  an  Office  ;  in  restraint 
of  Marriage,  or  of  Trade,  and  the  like :  these  must  be 
made  out  at  the  Trial  by  Evidence. 

2.  If  the  Plea  is  solvit  ad  diem  or  post  diem. 
{*)  4  Esp,  N.  P.  C.  255.  O)  4  Mau.  &  Selw.  338. 


CHAP.  III.]         on  the  Plea  of  Solvit  ad  diem.  131 

This  Issue  is'  supported  by  Evidence  on  the  part  of 
Defendant  of  actual  payment,  as  by  the  production  of  a 
Receipt  in  the  Plaintiff's  hand- writing  ;  or  the  Defendant 
may  rely  on  the  presumption  of  law,  that  from  that  length 
of  time,  payment  will  be  presumed,  in  which  case  no 
Evidence  on  his  part  is  required  ;  for  the  date  of  the  Bond 
ascertains  the  debt ;  and  if  twenty  years  have  elapsed,  and 
no  interest  been  paid,  it  is  conclusive  Evidence  for  him 
under  the  Issue  of  solvit  ad  diem  ;  and  the  expiration  of  the 
20  years  is  ascertained  by  showing  the  time  of  bringing 
the  Action. 

It  should,  however,  be  observed,  that  the  period 
intervening  between  the  date  of  the  Bond,  and  the  bring- 
ing the  Action,  must  be  full  20  years  ;  for  any  time  short 
of  it  will  not  be  sufficient. (z) 

3.  Foreign  Attachment  is  a  good  Plea. 

This  is  usually  proved  by  an  Officer,  or  Solicitor,  of  the 
City  Court,  who  produces  the  original  Proceedings  in  the 
Cause,  and  verifies  them  to  be  so. 

But  further  Evidence  should  be  given,  that  the  Plaintiff 
had  notice  of  the  Proceedings  in  the  Courts  below. 

4.  Entry  and  Eviction   is  a  good  Plea  in  Debt   for 
Rent ;(«)  but  it  may  be  given  in  Evidence   under  the 
General  Issue  of  nildebet.     Vid.  post.  161. 

This  is  a  fact  to  be  proved  by  Witnesses. (b]     And  the 

(z)  1  Esp.  Dig.  N.  P.  253.     1  Term  Rep.  270.     1  Campb.  27. 
(a)  I  Esp.  Dig.  N.  P.  260.  (b)  Hunt  v.  Cope,  Cowp.  242. 


132  Of  the  Evidence  in  Debt  [CHAP.  III. 

Defendant  must  give  in  Evidence  the  actual  entry  by  the 
Plaintiff  on  the  Premises;  and  not  only  that,  as  that 
might  only  amount  to  a  tresspass,  (c]  but  he  must  further 
prove,  that  he  was  expelled  by  the  Plaintiff  from  the 
possession  of  the  whole,  or  a  part,  of  the  thing  demised, 
and  that  he  kept  the  possession  against  him.(J) 

Vid.  post,  in  Covenant,  next  Chapter. 

4.  A  discharge  under  the  Insolvent  Debtors*  Act  is  a 
good  Plea  in  Debt  or  Assumpsit :  it  is  either  under  the 
Lords'  Act,  or  under  the  general  Insolvent  act. 

If  under  the  former,  the  Defendant  must  produce  the 
Rule  of  Court  by  which  he  was  discharged ;  if  the  latter, 
the  order  of  the  Insolvent  Court. 

5.  If  the  Pleas  are  by  an  Executor  or  Administrator. 

They  are,  first,  a  Retainer,  though  the  Defendant  may 
also  give  it  in  Evidence,  under  plene  administravit  ;  (e) 
2.  Plene  Administravit ;  and,  3.  Ne  unques  Exectuor. 

1.  If  Defendant  pleads  a  Retainer,  he  is  bound  to 
establish  his  own-  Debt  by  the  same- Evidence  which 
would  be  required  to  establish  the  demand  as  a  Debt 
against  the  Testator ;  as  if  it  was  a  Bond  Debt,  by  prov- 
ing it  by  the  Subscribing  Witness ;  if  by  a  Note,  by 
proof  of  it  as  before  stated  in  Assumpsit;  and  having 
done  so,  the  law  gives  him  his  right  of  Retainer  to  their 
amount. 

(c)  Reynolds  v.  Buckle,  Hob.  326.          (rf)  Vid.  2  East.  575. 
<0  3  Burr.  1580.     1  Esp.  Dig.  N.  P.  273. 


CHAP.  III.]         on  Pleas  by  Executors,  fcfc.  133 

2.  If  Defendant  pleads plene  administravit. 

That  Issue  is  supported,  by  proving  the  Payment  of 
Debts  due  by  the  Testator  to  others,  which  were  of  a 
higher  or  equal  degree  with  that  for  which  the  Action  is 
brought,  and  which  were  so  paid  before  the  Action 
brought.(/) 

Evidence  of  these  Payments  are  matters  of  fact,  and  to 
be  proved  by  Witnesses :  this  most  usually  is  done  by  the 
Parties  themselves,  to  whom  the  Payments  have  been 
made,  and  who  can  establish  the  existence  of  the  Debts 
due  to  them,  as  well  as  the  Payments.  So  if  there  were 
any  written  Securities  of  the  Testator,  as  Bonds  or  Notes, 
paid  off  by  the  Executor,  they  should  be  produced  and 
proved  to  be  paid  ;  but  they  must  be  shown  to  be  valid 
Securities,  and  entitled  to  preference,  (h)  If,  therefore, 
the  Executor  sets  up  a  Bond  as  paid,  he  must  prove  the 
sealing  and  delivery  of  it ;  but  the  proof  of  mere  Payment 
of  simple  contract  Debts  is  sufficient.^') 

If  the  Defendant  pleads  plene  administravit,  on  which 
Issue  is  joined,  in  order  to  charge  him  with  Assets,  the 
Plaintiff  must  show  what  effects  he  had :  such  as  the 
value  of  Testator's  Stock,  Debts,  &c. :  and  for  that  pur- 
pose he  may  give  in  Evidence  the  Inventory  he  exhibited 
to  the  Spiritual  Court,  and  signed  by  him ;  and  if  so  it 
shall  charge  him  to  the  extent :  and  the  Plaintiff  may  also 
surcharge  it,  by  showing  the  Property  undervalued  or 
Property  omitted ;  and  if  in  the  account  the  Defendant 

(/)  1  Esp.  Dig.  N.  P.  275.  (A)  1  Esp.  Dig.  286. 

(i)  Saunderson  v.  Mitchell,  1  Show.  81. 


134  Of  the  Evidence  in  Debt  under    [CHAP.  Ill- 

gave  in  a  list  of  Debts,  not  distinguishing  the  good  Debts 
from  the  bad,  he  shall  be  charged  with  a 


3.  If  the  Defendant  pleads  Ne  unques  Executor. 

This  Plea  is  a  denial  of  the  Plaintiff's  right  to  sue  in  the 
character  of  Executor.  It  is  not  a  mere  denial  he  has  not 
got  Probate  of  the  will,  for  that  he  makes  Profert  of,  but  it 
is  that  he  is  not  rightful  Executor. 

As,  for  example,  —  if  Probate  had  been  granted  to  the 
Plaintiff  of  a  Will,  which  was  afterwards  set  aside  for  For- 
gery, or  Fraud  :  though  the  Plaintiff  once  was  in  possession 
of  a  Probate,  and  so  could  have  made  a  Profert,  the  Let- 
ters testamentary  being  annulled,  he  is  no  longer  Execu- 
tor, ne  unques  Executor.  In  a  case,  therefore,  so  circum- 
stanced, the  Defendant  should  give  in  Evidence  the 
sentence  of  the  Spiritual  Court,  by  which  the  Will  was 
set  aside,  and  a  new  Probate  ordered  to  be  granted,  by 
which  it  will  appear,  that  the  Plaintiff  was  not  then  Ex- 
ecutor. 

Under  this  Issue  the  Defendant  may  show,  that  the  Pro- 
bate has  been  irregularly  granted,  in  respect  of  bona  nota- 
bilia. 

9 

Thus,  if  the  Plaintiff,  had  declared  as  Executor,  and 
made  profert  of  a  Probate,  granted  by  the  Bishop  of  Lon- 
don, and  the  Defendant  proved,  that  the  Testator  had  bo- 
na notabilia  in  the  Diocese  of  another  Bishop,(/)  the  Pro- 
bate would  be  void)  for  there  should  then  have  been  a  Pre- 
' 

(*)  1  Esp.  Dig.  286.  1  Dig.  N.  P.  Esp.  279. 


CHAP.  III.]]     the  Plea  of  ne  unques  Executor.  135 

rogative  Probate^m)  or  Letters  of  Administration  ;  the 
Defendant,  therefore,  in  support  of  his  Plea  should  give 
Evidence  of  the  Deceased  having  left  Assets  in  different 
Dioceses  ;  and  then  he  supports  his  Plea  :  and  as  to  this 
it  may  be  observed,  that  Bonds,  or  Specialties,  are  Assets, 
where  the  Securities  are  when  the  Testator  died ;  but 
Debts  by  Simple  Contract  follow  the  Person,  and  are  As- 
sets where  he  died.(w) 

So  if  the  Action  is  brought  for  a  greater  sum  than  is  sworn 
to,  on  granting  the  Probate  (or  Letters  of  Administra- 
tion)^) the  Executor  cannot  recover ;  for  then  the  Probate, 
or  Letters  of  Administration,  are  void,  for  want  of  a  pro- 
per stamp.(/>) 

To  establish  this  defence,  the  Defendant  must  produce 
a  copy  of  the  Bond  given  on  granting  the  Probate,  or  Ad- 
ministration, and  filed  in  the  Prerogative  Court,  or  Office, 
of  the  Bishop,  or  have  the  original  produced  by  the  Offi- 
cer. As  the  Probate,  or  Letter  of  Administration,  must 
be  produced  under  the  Plea  of  ne  unques  Executor,  it  will 
then  appear,  whether  the  Probate,  or  Letter  of  Adminis- 
tration have  been  granted  for  a  sufficient  sum. 

And  it  should  seem,  that  the  Defendant  might  go  into 
Evidence,  to  show  how  much  Property  the  Plaintiff  had 
of  the  Testators,  and  then  by  the  production  of  the  Bond, 
and  what  appears  on  the  face  of  the  Probate  viz.  "  sworn 
to  be  under  /— = — "  the  Plaintiff  could  not  succeed  on  this 


(m)  1  Str.  74.  (n)  Cro.  El.  472. 

(o)  3  Taunt.  1 13.  (fi)  2  Mau.  &  Selw.  553. 


136  Of  the  Evidence  in  Debt       [CHAP.  III. 

Plea  :  so  Defendant  may  show  the  Seal  of  the  Ordinary 
forged. 

6.  Of  the  Evidence  in  Actions  against  Assignees  of  a  Lease 
or  Term,  for  Rent  in  Arrear. 

If  the  Leasee  assigns,(y)  he  remains  still  liable  in  Debt 
for  Kent,  becoming  due  after  Assignment,  (r)  unless  the 
Lessor  has  accepted  Rent  from  the  Assignee,  in  which 
case,  he  can  never  sue  in  Debt  the  first  Lessee.(^) 

If,  therefore,  there  has  been  an  Assignment,  and  the 
Lessor  has  accepted  Rent  of  the  Assignee,  and  he  sues 
the  original  Lessee ;  the  Lessee,  if  he  sued,  will  be  dis- 
charged, by  producing,  and  regularly  proving,  the  Deed 
of  Assignment  to  some  Person  :  then  proving  the  receipt 
of  Rent  by  the  Plaintiff  from  such  Person  as  Assignee  ; 
and  for  that  purpose,  the  Assignee  is  a  good  Witness. 

But  if  the  Action  is  against  an  Assignee,(£)  for  Rent  in 
arrear,  he  is  only  liable  while  in  possession  ;  and  he  may 
show  an  Assignment  made  by  him  prior  to  the  cause  of 
Action  accruing,  to  a  third  Person,  by  producing,  and 
proving  such  Assignment,  and  that  he  was  not  in  posses- 
sion during  the  time  for  which  the  rent  is  sued  for :  for 
this  purpose  his  Assignee  is  a  good  witness  to  prove,  when 
he  became  so. 

An  Executor  is  considered  as  an  Assignee  in  Law ;  and 
the  same  Rule  applies  to  him.(w) 

(?)  Esp.  Dig.  N.  P.  233.  (r)  Walker's  case,  3  Co.  22. 

(*)  Marsh  v.  Bruce,  Cro.  Jac.  334.   (r)  2  Stra.  1221.   Salk.  81. 
(t*)Cro.  Eliz.  715. 


CHAP.  Ill,]      under  the  Plea  of  Nil  Debet.  137 

7.   Of  the  Evidence  on  the  Plea  of  Accord,  and  Satisfac- 
tion. 

As  the  Plea  must  set  out  what  the  Defendant  ^ave  in 

o 

satisfaction  of  the  Plaintiff's  demand,  he  must  prove,^r^, 
that  the  Plaintiff  agreed  to  take  the  thing  mentioned,  in 
satisfaction  of  his  demand  ;  and,  secondly,  that  it  was  ab- 
solutely delivered,  so  that  the  whole  transaction  is  com- 
plete and  ended.  That  is  to  be  done  by  witnesses  who 
were  present  when  the  Plaintiff  agreed  to  take  the  thing 
stated  in  discharge  of  his  demand,  and  then  the  Defendant 
must  prove  the  delivery  of  it  to  the  Plaintiff. 

8.   Of  the  Evidence  under  the  Plea  of  Nil  Debet. 

In  Actions  of  Debt  on  Simple  Contract,  Nil  Debet  is 
the  General  Issue  ;  and  it  is  material  to  consider,  what 
the  Defendant  may  give  in  Evidence  under  it.(.r) 

1.  He  may  produce  the  Writ,  and  sho\v  -when  the 
cause  of  Action  accrued  ;  whereon  the  Statute  of  Limi- 
tations may  attach,  and  be  a  bar  to  the  Action  :  for  the 
Statute  need  not  be  pleaded,  (y) 

2.  He  may  give  Entry  and  Expulsion  in  Evidence 
under  that  Issue  :  though  he  may  also  plead  it :  for  the 
Plaintiff  would  fail  in  that  case  to  prove,  that  the  Defend- 
ant "  entered  and  was  thereof  possessed ;"  ante,  65.  (z) 

3.  That  he  was  only  Executor  durante  minore  xtate  ;(a) 

(*)  Esp.  Dig.  Vol.  I.  287.  (y)  Anon.  Salk.  278. 

(z)  1  Sid.  151.  (c)  1  Mod.  173. 


138  Of  the  Evidence  in  Debt  fcte.      [CHAP.  III- 

that  he  paid  Debts  and  Legacies,  and  delivered  over  to 
the  rightful  Executor  all  the  residue  of  the  Testator's 
effects  on  his  coming  of  age. 

These  are  the  principal  Pleas  in  this  Action,  and 
Evidence  in  support  of  which  will  afford  a  sufficient  de- 
fence to  the  Defendant.  It  may,  however,  be  observed  in 
general,  that  almost  every  Plea  which  is  good  in  Assump- 
sit  in  Discharge  of  a  Debt,  is  Evidence  in  this  Action  ; 
and  by  referring  to  them  there,  the  Rules  for  settling  the 
Evidence  will  be  found  at  length. 


CHAP.  IV.]     Of  the  Evidence  in  Covenant,  &c.          139 


CHAPTER  IV. 


OF    SETTLING     THE    EVIDENCE    IN    THE    ACTION    OF    CO- 
VENANT. 

A.N  Action  of  Covenant  must  be  founded  on  a  Deed, 
and  it  must  be  so  stated  in  the  Declaration,(«)  Non  est 
factum  is  pleaded  in  almost  every  instance.  The  Plain- 
tiff must  prove  the  execution  of  it  by  calling  the  subscribing 
witness ;  subject,  however,  to  the  exceptions  before- 
mentioned  in  the  preceding  Chapter. — Vid.  ante,  page 
134.  for  Cases  in  which  it  is  not  required  to  call  him.(6) 

Covenants  being  for  various  purposes,  it  is  impossible 
to  put  particular  Cases,  some  few  leading  ones  excepted. 
General  Rules  can  only  be  given  :  therefore — 

1.  Where  the  Plaintiff  assigns  a  breach  generally  in  the 
words  of  the  Covenant,  and  specifies  how  it  has  been  done, 
his  Evidence  must  correspond  with  his  particular  state- 
ment of  the  breach. (c) 

As  where  there  is  a  Covenant  "  not  to  buy  or  sell  for  a 
given  time,  without  leave  of  the  Plaintiff  :"(d)  and  Plain- 
tiff assigns  a  breach,  that  the  Defendant  did  sell  to  A.,  B., 

(a)  Esp.  Dig.  N.  P.  320.  (6)  2  Stra.  814. 

(c)  1  Esp.  Dig.  N.  P.  331.  (O  3  Term  Rep.  308. 


140  Of  the  Evidence  in  Covenant      [CHAP.  IV. 

and  C.,  he  must  prove  that  he  did  so,  by  proving  sales  to 
some  of  those  particular  Persons ;  and  they  are  good 
witnesses  to  prove  it :  though  other  witnesses  may  be 
called  to  prove  the  same  facts. 
. 

2.  If  there  is  any  thing  to  be  done  by  the  Plaintiff,  pre- 
vious to  what  the  Defendant  covenants  to  do,  he  must 
prove  by  Evidence  that  he  did  it,  or  offered  to  do  it. 

As  if  the  Defendant  covenants  to  pay  a  certain  sum  of 
money,  on  the  Plaintiff  executing  to  him  an  assignment  of 
certain  Premises,  the  Plaintiff  should  prove,  that  he  either 
did  assign,  by  proving  a  Deed  regularly  executed  and 
delivered,  or  that  he  tendered  and  offered  such  a  Deed  to 
the  Defendant,  which  facts  must  be  proved  by  a  witness. 

3.  As  the  verdict  in  Covenant  is  for  Damages,   the 
Plaintiff  should  be  prepared  not  only  to  prove  a  breach  of 
the  Defendant's  Covenant,  but  also  what  sum  will  be  a 
sufficient  recompence  to  himself  for  the  breach  of  it. 

As  in  Covenant  for  not  repairing  a  House,  the  Plain- 
tiff must  not  only  prove  that  the  House  was  ruinous  and 
decayed,  but  also  what  sum  it  would  require  to  repair  it, 
as  that  is  the  proper  measure  of  his  damages  :  this  must 
be  done  by  witnesses  ;  otherwise  he  will  get  nominal 
damages  only. 

4.  If  the  Plaintiff  declares  as  Assignee,  as  it  is  necessary 
that  he   should  state  in  his  Declaration  his  whole  title, 
regularly  deduced  from  the  Lessor  or  Grantor,  so  he  must 
prove  his  whole  title,  as  stated  in  his  Declaration,  by 
regular  Evidence.     If  any  step,  or  part  of  his  title,  is  by 


CHAP.  IV.]  on  general  Breaches. 

Deed  ;  he  must  call  the  subscribing  witness  to  prove  the 
execution  ;  if  the  Estate  is  fee  simple,  and  he  states  him- 
self as  Heir,  he  must  prove  that  he  is  so ;  if  as  Devisee, 
he  must  produce  the  Will,  and  prove  by  the  witnesses 
subscribed  to  it,  its  regular  execution  by  the  Testator ;  if 
the  Lessor,  or  Grantor,  had  an  interest  for  years  only,  and 
one  step  is  as  Legatee,  Executor,  or  Administrator, 
Probate  of  the  Will  will  then  be  sufficient. 

If  the  title  is  deduced  by  Marriage,  it  must  be  regularly 
proved,  as  before  stated  in  Actions  by  Baron  and  Feme. 

If  the  title  is  by  a  private  Act  of  Parliament,  there  must 
be  an  examined  copy  produced  from  the  Parliament  Roll, 
and  proved  by  a  witness  who  examined  it. 

What  will  be  Evidence  in  defence,  by  the  Defendant, 
will  be  found  post,  under  the  head  of,  "  The  Evidence  on 
the  breach  of  the  Covenant  not  to  assign,  &c." 

5.  If  the  Action  is  against  the  Assignees  of  a  Bank- 
rupt,(e)  the  Plaintiff  must  prove  that  the  Assignees  took 
possession  of  the  Premises  demised,  and  kept  the  posses- 
sion, not  merely  to  try  to  ascertain  the  value  of  them,  but 
as  taking  to  the  interest  with  a  view  to  make  it  an  efficient 
part  of  the  Bankrupt's  Estate  :  this  is  a  matter  of  some 
difficulty  in  Evidence  as  to  what  shall  amount  to  a  taking 
to  the  Premises.  The  Plaintiff  should,  therefore,  be  pre- 
pared with  witnesses  to  prove  when  the  Assignees  took 
possession,  and  how  long  they  held  them :  what  acts  of 
Ownership  they  exercised.  It  is  important,  if  the  fact 

(<r)  1  Esp.  N,  P.  C.  234.    7  East.  335.     3  Campb.  340. 


• 

•^ 
142  Of  the  Evidence  in  Covenant    [CHAP.  IV. 

took  place,  for  the  Plaintiff  to  show,  that  he  applied  to  the 
Defendants  the  Assignees,  for  the  possession,  and  that  they 
either  refused  it,  or  gave  him  an  equivocal  ansvver.(y) 

I  shall  now  consider  the  Evidence  in  cases  where  the 
breach  of  particular  Covenants  is  assigned. 

1.  Of  the  Evidence  where  the  breach  is  on  the  Covenant 
for  Quiet  Enjoyment. 

If  the  Plaintiff  declares  for  a  breach  of  the  Covenant  for 
Quiet  Enjoyment,  in  a  Lease  from  the  Defendant  to  him:(g-) 
it  will  not  be  sufficient  for  him  to  prove  merely  that  he  has 
been  disturbed,  or  evicted,  for  that  might  be  wrongfully 
by  a  stranger  who  would  be  subject  to  an  Action  for  it ; 
he  must  go  further,  and  prove  that  it  was  by  some  Person 
claiming  by  elder  title.  For  this  purpose,  the  Plaintiff 
must  go  into  Evidence  of  the  manner  he  was  disturbed  in 
the  possession,  and  show  under  what  colour  it  was  done  ; 
as,  e.  g.  if  he  was  evicted  by  Ejectment,  he  should  show 
the  Ejectment  served,  and  the  Judgment  obtained  on  it, 
by  producing  an  examined  copy,  and  calling  the  Person 
who  so  recovered. 

But  in  settling  the  Evidence,  in  this  respect,  the  Cove- 
nant should  be  accurately  looked  to,  as  the  usual  form  of 
it(h]  now  by  the  Lessor,  is  "  for  Quiet  Enjoyment  against 
himself,  and  all  those  claiming  by,  through,  or  under  him  ;" 
in  which  case,  though  the  Lessee  was  so  disturbed  or  evict- 
ed, the  Lessor  might  not  be  liable;  unless  the  Plaintiff  could 

(/)  7  East.  339. 

(#)  1  Esp.  Dig.  N.  P.  297.    Inst.  35.    F.  N.  B.  242. 

(A)  2  Bos.  &  Pull.  13.     15  East.  530. 


CHAP.  IV.]  for  Quiet  Enjoyment.  143 

prove,  that  the  Person  who  disturbed  him  did  claim  by, 
through,  or  under  his  Lessor,  the  Defendant :  this  may 
be  done  by  production  of  the  proceedings,  or  by  calling, 
as  well  in  the  last  Case  as  in  this,  the  Party  who  has  made 
the  Eviction  to  state  the  ground  of  his  Proceeding. 

Where  a  Lessee  is  so  disturbed  in  his  Enjoyment  of  the 
Premises  demised,  as  by  having  an  Ejectment  served  on 
him ;  it  is  always  prudent  to  acquaint  the  Lessor  of  such 
proceeding,  and  that  in  case  of  Eviction,  he  will  be  called 
upon  under  the  Covenant ;  if  that  has  been  done,  and  the 
Lessor  has  not  defended  the  possession,  and  the  Plaintiff 
has,  in  consequence,  been  evicted ;  by  giving  Evidence 
of  his  having  so  given  notice  to  his  Lessor  to  defend, 
it  should  seem  to  be  sufficient  to  show  the  Eviction  only, 
without  going  into  any  Evidence  of  the  title  of  the  Person 
Evicting. 

It  has  been  stated,  that  the  Plaintiff  must  show  the  man- 
ner in  which  he  has  been  disturbed,(z)  for  it  is  necessary 
that  it  should  be  done  by  some  act ;  for  a  verbal  disturb- 
ance, as,  e.  g.  by  prohibiting  his  Tenant  to  whom  he  had 
underlet,  not  to  pay  Rent  to  him  is  not  sufficient. 

2. — Of  the  Evidence- -where  the  breach  is  on  the  Covenant 
not  to  alien,  assign,  or  part  with  the  possession. (k) 

In  this  case,  if  the  Plaintiff  proceeds  on  the  latter  part 
of  that  Covenant,  after  proving  the  Execution  of  the  Lease; 
he  has  only  to  prove  that  some  Person,  not  the  Lessee,  is 
in  possession  of  the  demised  Premises.(/)  If  he  proceeds 

(0  1  Brownl.  81.  (£)  1  Esp.  Dig.  N.  P.  300. 

CO  4,  Taunt.  766. 


144  Of  the  Evidence  in  Covenant         [CHAP.  IV. 

on  the  former,  he  should  call  the  Person,  whom  he  sup- 
poses, or  knows,  to  be  the  Assignee,  to  prove,  that  the 
Defendant  assigned  the  Premises  to  him.  He  is  not 
called  upon  to  prove  any  Deed  of  regular  assignment ;  as 
that  belongs  to  the  Assignee.  But  the  Defendant,  when 
so  charged  for  having  assigned,  may  show,  that  the  Per- 
son who  is  in  possession,  or  presumed  to  be  in  posses- 
sion,^) is  not  an  Assignee,  but  an  under-Lessee  only ; 
to  prove  which,  he  must  either  prove  the  Lease  made  to 
him,  by  calling  the  subscribing  witness,  or  by  a  witness 
who  knows  the  fact ;  the  under-Lessee  himself  is  for  this 
purpose  a  good  witness.  So  he  may  show,  that  though 
the  Premises  were  assigned,  it  was  by  his  Assignees,  in 
consequence  of  his  becoming  a  Bankrupt ;(«)  in  that  case 
he  should  produce  the  proceedings,  and  an  assignment,  by 
a  subpoena  duces  tecum  to  the  Assignee  of  the  Term ;  and 
proving  the  execution  of  it  proves  his  case.  So  he  may 
show,  that  the  Lease  was  sold  by  the  Sheriff,  under  an 
execution  against  him ;  in  that  case  he  should  give  the 
Writ  of^/z.  fa.  in  Evidence,  by  an  examined  copy,  and 
then  prove,  by  a  witness,  the  sale  by  the  Sheriff  to  some 
other  Person,  and,  by  a  subpoena  duces  tecum  to  that  Per- 
son, have  the  Bill  of  Sale  from  the  Sheriff,  and  prove  the 
execution  of  it  by  the  Subscribing  Witness. 

So  if  the  Lessor  has  accepted  an  Asssignee  as  his  Te- 
nant, and  he  sues  him,  the  Defendant  may  plead,  that  be- 
fore the  Covenant  broken  lie  had  assigned  to  another : 
proving  this,  as  in  the  cases  just  stated,  discharges  the 
Defendant,  (o) 

(m)  1  Stra.  405.    Dougl.  174. 

(n)  3  Mau.  &  Selw.  353.        (o)  Dougl.  1  Ed.  438. 


CHAP.  IV.]    to  Repair,  and  deliver  up  in  Repair.       145 

This  Covenant  is  often,  "  Not  to  assign  without  the 
Lessor's  leave  in  writing  first  had  and  obtained."  In  set- 
tling the  Evidence,  in  that  case,  it  must  be  observed,  that 
a  parol  license  is  not  good  :  there  must  be  a  license  in 
writing ;  and  it  must  be  proved,  at  the  trial,  by  a  witness, 
to  be  the  Lessor's  hand-writing. 

3.  Of  the  Evidence  where  the  breach  is  on  the  Covenant  to 
Repair,  and  Deliver  up  in  Repair. (p) 

This  is  a  question  of  fact,  and  to  be  tried  by  the  testi- 
mony of  witnesses,  as  to  the  state  of  the  repairs.  It  is, 
however,  laid  down  in  a  book  of  high  authority,(<?)  that 
"  ordinary,  and  natural  decay  is  not  a  breach  of  this  Co- 
venant. "  It  may,  therefore,  be  advisable,  in  Settling  the 
Evidence  on  this  head,  for  the  Defendant  to  prove,  that 
though  the  premises  are  in  a  bad  state,  it  has  proceeded 
from  natural  decay.  This  is  matter  of  opinion  of  Persons 
of  skill,  who  should  be  called ;  but  the  Defendant  must 
also  show,  that  he  kept  the  Premises  otherwise  in  proper 
Repair,  so  that  the  decay  was  not  caused  by  his  neglect. 

It  is  a  usual  Covenant  for  the  Tenant  to  Repair,  the 
Lessor  finding  rough  timber.  If  the  Tenant  is  sued  on 
this  Covenant,  he  may  show,  that  he  required  of  his  Les- 
sor to  assign  him,  or  give  him,  rough  timber,  which  he 
refused,  or  neglected,  to  do ;  this  may  be  proved  by  a 
Witness,  who  made  the  demand.  If  this  is  proved,  it  is 
sufficient  Evidence  for  the  Defendant,  the  finding  the  tim- 
ber being  a  condition  precedent. 

V 

(ft)   1  Esp.  Dig.  N.  P.  301. 

(?)  Fitzh.  Abr.  Title  Covenant,  fol.  4. 


• 


146  Of  the  Evidence  in  Covenant         [CHAP.  IV. 

4.  Of  the  Evidence  on  the  Breach  of  Covenant  not  to 
Plough  Meadow  ;  and  to  use  the  Land  in  a  Husbandlike 
way. 

In  this  case  the  Plaintiff  must  prove  that  the  Land  (of 
the  breaking  up  of  which  he  complains)  was  really  Mea- 
dow at  the  time  of  the  demise  ;(/•)  this  is  done  by  a 
Witness,  who  knew  it ;  and  he  must  then  prove  the  fact 
of  the  Ploughing,  and  give  Evidence  of  the  amount  of  the 
damages. 

As  to  the  Evidence  of  using  the  Land  in  a  husband - 
like  way,  vide  ante,  Chap,  of  Assumpsit,  page  80. 

Of  the  Evidence  for  the  Defendants. 

Under  some  of  the  preceding  heads  I  have  stated  the 
Evidence  for  the  Defendants.  Such  as  what  are  the 
matters  of  defence  on  which  a  Defendant  may  rely,  and 
under  the  other  heads  of  particular  Covenants.  It  may 
now  be  necessary  to  apply  to  the  Evidence  generally  ap- 
plying as  matters  of  defence.  It  should,  however, 
previously  be  observed,  that  where  a  Party  has  entered 
into  an  express  Covenant,  no  circumstances,  even  of 
future  impossibility  from  natural  causes,  can  discharge 
him.  Such  as  if  a  ship  is  chartered  to  sail  by  a  certain 
day  ;  though  from  adverse  winds  it  is  impossible,  it  does 
not  discharge  the  Covenant  contained  in  the  charter-party. 
He  is,  therefore,  always  in  such  case  only  discharged  by 
the  Plea  and  Evidence  of  performance ;  as  in  the  case 

(*•)  1  Stra.  610. 


CHAP.  IV.]  to  Repair ',  and  not  to  plough  Meadow.       147 

just  mentioned,  the  Defendant  would  be  forced  to  call  a 
witness  to  prove  the  actual  time  of  the  ship's  sailing,  and 
that  it  was  on  the  day  mentioned  in  the  charter-party. 

2.  The  Defendant  may  plead,  and  show,  in  his  defence, 
other  Covenants  in  bar  of  those  on  which  he  is  sued. (s) 
These  Covenants  may  be  either  in  the  Deed,  on  which  the 
Action  is  brought,  or  in  another.     If  they  are  in  the  same 
Deed,  when  the  Plaintiff  has  proved  the  Deed,  by  the 
Subscribing  Witness,  by  reference  to  the  Covenant,  the 
Plea  may  be  supported  ;  as  if  the  Action  was  Covenant 
for  non-payment  of  Rent,  and  in  the  same  Deed  there  was 
a  Covenant  that  the  Lessee  might  retain  out  of  it,  what 
was  expended  in  repairs.     The  Defendant  by  showing 
that  Covenant,   and  proving  that  he  had  expended  in 
repairs  to  the  amount  of  the  Rent,  by  Witnesses,  would 
be  entitled  to  a  verdict(j) 

But  if  the  Plea  is,  of  Covenants  in  another  Indenture  in 
bar,  that  Indenture  must  be  produced  and  proved  by  the 
Subscribing  Witness.  But  this  last  Deed  must  appear 
to  be  intended  to  operate  as  a  defeasance  to  the  first,  and 
to  refer  to  it  so  in  terms,  or  it  will  be  no  bar. 

3.  Non  est  factum  is  another  Plea :  (the  Evidence  as 
to  which  has  been  already  treated  of,  ante,  151.)  of  which 
in  an  action  of  Covenant  the  Defendant  may  avail  him- 
self. 

4.  Entry  and  Eviction  is  also  a  good  Plea  in  this  Action, 
and  has  also  been  treated  of  before.     But  in  the  case  of 

(«)  1  Esp.  Dig.  N.  P.  327,  (r)  1  Lev.  152. 


148  Of  the  Evidence  in  Covenant       [CHAP.  IV. 

Covenant,  the  Defendant  is  bound  to  prove  by  Witnesses 
that  the  Entry  and  Eviction  was  such  as  to  prevent  his 
performing  the  Covenant :  for  if  it  could  be  performed, 
the  Plea  will  not  be  supported.(w) 

Thus,  ex.  gr.  If  the  Covenant  was  to  repair  the 
Dwelling-House,  and  Entry  and  Eviction  pleaded  :(x)  and 
the  Entry  was  into  the  backyard  :  this  would  not  support 
the  Plea,  unless  the  Defendant  also  showed  that  by  such 
Entry  he  was  totally  prevented  from  repairing  the  House. 

5.  A  Release,  is  a  good  Plea  in  this  Action :  but  to  be 
available  it  must  be  by  Deed,  and  which  must  appear  to 
have  been  executed  after  the  breach  of  Covenant  was  com- 
mitted.    For  this  purpose,  the  Defendant  must  have  Evi- 
dence to  prove  the  precise  time  of  the  Covenant  being 
broken.     He  must  then  prove  the  execution  of  the  Release 
by  the  Subscribing  Witness,  and  prove  that  it  was  execu- 
ted at  the  time  it  bears  date,  which  must  appear  to  be  after 
the  day  of  the  breach  just  above-mentioned. 

6.  Accord^  and  Satisfaction,  is  a  good  Plea  in  this  Ac- 
tion, as  to  which  see  the  Rules  of  Evidence,  ante,  160. 
It  should,  however,  in  the  case  of  Covenant,  be  proved  by 
Witnesses  to  have  taken  place  after  a  breach  of  Covenant 
committed ;  the  time  of  which  should  be  ascertained,  as 
mentioned  before,  and  the  time  of  the  Accord,  and  Satis- 
faction, be  proved  by  a  Witness,  as  well  as  the  Ac- 
cord, and  Satisfaction,  itself. 

(w)  Cro.  EL  374. 

.  P.  165. 


CHAP.  IV.]     Of  other  Covenants  in  Bar,  fcfc.  149 

7.  Infancy,  is  a  good  Plea  in  this  Action,  and  decisive  if 
proved :  as  to  the  Evidence,  vid.  ante,  122. 

These  are  the  principal  heads  of  defence  in  which  the 
Defendant  may  rely.  Non  estfactum  is  generally,  pleaded 
with  them  :  and  the  Defendant's  Evidence  is,  of  course, 
to  be  governed  by  his  Pleas. 


*     f 

150  Of  the  Evidence  in  Assault        [CHAP.  V. 


CHAPTER  V. 


OF  SETTLING  THE   EVIDENCE    IN   ACTIONS  OF   ASSAULT, 
AND  FALSE  IMPRISONMENT. 

A  HESE  Actions,  and  that  of  Trespass  vi  et  armis,  pro- 
perly so  called,  being  those  usually  brought  against  Ma- 
gistrates, and  Peace  Officers,  and  those  of  the  Excise,  and 
Customs  ;  in  all  of  which  notice  of  Action,  or  some  pre- 
vious demand  of  the  Warrant,  or  authority,  under  which 
the  Defendant  acted  is  required,  and  which,  if  not  attend- 
ed to,  the  Plaintiff  will  be  nonsuited ;  it  must,  therefore, 
be  particularly  observed  in  those  Actions, — 

1.  That  notice  of  an  Action,  intended  to  be  brought 
against  the  Defendant,  so  circumstanced,  must  be  given 
one  month  before  it  is  brought  by  Stat.  24  Geo.  II.  c. 
44. 

2.  A  demand  of  a  perusal,  and  copy,  of  the  Defendant's 
Warrant  must  be  made  on  him,  if  a  Constable  ;  and  he 
must  have  refused,  or  neglected  to  give  it  for  six  days  by 
Stat.  24  Geo.  II.  c.  44.  ^ 

3.  Officers  of  the  Excise,  and  Customs,  must  have  one 
month's  notice  of  Action  by  Stat.  23  Geo.  III.  c.  70.,  of 
all  which,  notices  have  been  given,  the  Plaintiff  must  be 


CHAP.  V.]  and  False  Imprisonment.  151 

prepared  with  Evidence  at  the  Trial.  I  shall,  therefore, 
now  proceed  to  consider  : — 1.  The  general  Evidence  for 
the  Plaintiff  in  those  Actions. 

Every  Imprisonment  contains  an  Assault;  and  the 
Rule  as  to  settling  Evidence,  is,  in  that  respect  the  same. 
In  these  cases  the  Plaintiff  in  both  Actions,  in  proof  of  his 
Declaration,  is  to  go  into  the  facts  at  full  length,  of  the 
Assault  and  detention  of  the  Person,  proving  the  manner 
in  which  it  was  done  :  the  violence  or  publicity  of  it :  the 
extent  of  the  bodily  injury,  if  an  Assault  only,  and  the 
length  of  time  the  Plaintiff  was  detained,  if  false  Imprison- 
ment: the  place  where  he  was  confined,  if  it  was  an 
unusual  or  improper  place,  or  noisome  or  unwholesome, 
is  matter  also  fit  to  be  gone  into  ;  and  if  special  damage 
is  laid,  Evidence  of  that  should  be  fully  given. 

If  Husband  and  Wife  are  Plaintiffs  or  Defendants,  the 
Marriage  must  be  proved. 

The  Evidence  for  the  Plaintiff  must,  therefore,  neces- 
sarily depend  on  the  various  circumstances  of  the  case 
and  be  governed  by  them.  These  general  Rules  should, 
however,  be  observed : — 

1.  That  the  Plaintiff,  though  his  Declaration  concludes, 
"  And  other  wrongs  then  and  there  did,  &c."  cannot  go 
into  Evidence  of  any  matter  which  might  have  been  put 
on  the  Record  as  substantive  matters  of  injury  or  com- 
plaint :  for  in  such  case  they  must  be  stated. (a) 

(a)  1  Esp.  Dig.  N.  P.  354. 


152  Of  the  Evidence  in  Assault.         [CHAP.  V. 

As  where  the  Declaration  for  False  Imprisonment  was 
in  that  common  form  of  conclusion,  "  and  other  wrongs, 
&fc."  ;  and  the  Plaintiff  in  one  case  wanted  to  go  into  Evi- 
dence to  prove.  "  That  during  his  confinement,^)  he 
had  been  stinted  in  his  allowance  of  food,"  it  was  held  that 
it  could  not  be  done  ;  and,  in  another  case,  where  he 
wanted  to  go  into  proof  of  his  having,  during  his  confine- 
ment, caught  the  Gaol  fever,(c)  it  was  ruled  by  Lord 
Kenyon  that  such  Evidence  was  inadmissible.  See  post, 
p.  217. 

2.  Where  the  Plaintiff's  Replication  is  the  general  one 
of  "  de  injurid  sud  proprid"  he  is  confined  to  a  disproval 
of  the  facts  stated  in  the  Plea,  and  cannot  give  in  Evidence 
any  extrinsic  matter  not  contained  in  it.(</) 

As  where  the  Defendant,  to  False  Imprisonment  gene- 
rally, justified  the  Arrest  and  the  detention  under  a  War- 
rant, it  was  held  that  the  Plaintiff  could  not  go  into 
Evidence  under  that  general  replication,  of  a  Tender  and 
refusal 


As,  therefore,  the  facts  to  be  proved  by  the  Plaintiff, 
are  of  such  limited  extent,  the  important  matters  of  Evi- 
dence in  this  Action  occur  in  the  defence.  The  important 
head,  therefore,  here  to  be  considered  is  :  — 

The  settling  the  Evidence  for  the  Defendant. 
The  Defendant  has  three  modes  of  defence  by  Plea.  — 

(6)  Peake's  N.  P.  C.  46.  (c)  Id.  62. 

(d)  1  Esp.  Dig.  N.  P.  354.  (<r)  2  Black.  Rep.  1  1  65. 


CHAP.  V.j          and  False  Imprisonment.  153 

1.  Of  the  General  Issue  Not  Guilty.— 2.  Of  matter  of 
Excuse,  as  that  the  injury  was  done  by  accident ;  but 
which,  as  it  may  be  given  in  Evidence  under  the  General 
Issue  is,  therefore,  rarely  pleaded. — And,  3.  Of  matter  of 
Justification  in  point  of  law. 

In  settling  the  Evidence,  which  may  be  given  under  the 
Plea  of  Not  Guilty,  it  must  be  considered,  as  produced 
either  as  an  answer  to  the  Action,  or  in  mitigation  of 
damages,  and  in  that  view  must  be  considered  distinctly. 

1.  Of  the  Evidence  under  the  Plea  of  Not  Guilty,  as  an 
answer  to  the  Action. 

This  in  that  respect  is  a  denial  of  the  facts  stated  by  the 
Plaintiff  as  amounting  to  an  Assault,  Battery,  or  Impri- 
sonment. It  is  the  General  Issue  in  these  Actions,  and 
puts  the  Plaintiff  upon  proof  of  his  Declaration.  In  the 
case,  therefore,  of  common  Persons,  the  Defendants  can 
only  call  witnesses  to  disprove  the  Plaintiff 's  case ;  and 
to  prove  that  he  is  falsely  charged  with  the  injury  com- 
plained of,  by  showing,  for  example,  that  the  Plaintiff  was 
mistaken  in  his  person,  and  that  the  injury  was  committed 
by  another :  this  is  done  by  proving  who  actually  com- 
mitted the  Assault  on  the  Plaintiff,  or  that  the  Defendant 
was  not  present,  or  took  no  part  in  it. 

But  in  the  cases  of  Justices  of  the  Peace,  Constables, 
Parish  Officers,  and  Officers  of  the  Revenue,  by  several 
Statutes  they  are  allowed  to  give  a  justification,  or  any 
special  matter,  in  Evidence,  without  pleading  it,  under 
the  General  Issue  only ;  these  cases  will  be  referred  to 
hereafter. 

u 


* 

.  Of  the  Evidence  in  Assault.         [CHAP.  V. 

2.  Under  this  Plea  of  the  General  Issue,  as  matter  of 
excuse  may  be  given  in  Evidence,  the  General  Issue  only 
is  in  most  cases  pleaded :  in  fact,  I  have  rarely  known 
matter  of  excuse  pleaded.     It  must,  however,  be  made 
out  in  Evidence.     Inevitable  Necessity  comes  under   this 
head,  as  well  as  accident ;  so  is  Amicable  Contest ;   as  if 
two  wrestled  for  a  Wager,  and  one  was  hurt  by  accident ; 
if  this  is  proved,  it  is  good. 

3.  The  important  matter,  in  settling  the  Evidence  for 
Defendant,  is  the  Evidence  which  he  is  to  give  under  the 
Plea  of  Justification.     These  Pleas  are,  of  course,  of  great 
number  and  variety ;  I  shall,  therefore,  apply  myself  to 
the  principal  ones  only. 

1.  Of  the  Justification  of  Son  Assault  Demesne. 

This  is  proved  by  the  Defendant  at  the  Trial,  by  show- 
ing, that  before  he  assaulted  the  Plaintiff,  the  latter  had 
assaulted  him ;  it  is  not  necessary  that  this  should  be  by 
striking  him,  but  by  showing  that  he,  the  Plaintiff,  was  in 
the  attitude,  or  about  to  strike  or  wound  him,  the  Defend- 
ant, which  he  averted  by  assaulting  the  Plaintiff.  It  will 
not  be  sufficient  for  the  Defendant  to  show  a  mere  menace 
or  threatening  posture  assumed  by  the  Plaintiff,  where  the 
Parties  were  so  far  asunder  that  the  Plaintiff  could  not 
reach  the  Defendant ;  he  must  show  that  he  was  within 
reach  of  the  Plaintiff  when  assaulted:  these  facts  must 
of  course,  be  proved  by  some  witness  who  happened  to 
be  present  when  the  assault  took  place,  and  who  can 
prove  them  in  Evidence. 


CHAP.  V.]  and  False  Imprisonment.  155 

2.  Plea  ofmolliter  manus  imposwt. 

This  is  a  justification  of  an  actual  Assault,  but  which 
had  been  caused  by  the  act  of  the  Plaintiff  himself,  and 
which  the  Defendant  was  justified  in  making,  either  as 
preventing  him  from  doing  some  act  or  resisting  for  some 
lawful  cause ;  and  the  matters  so  justified,  are  of  great 
variety,  as — 

If  the  Plaintiff  came  into  Defendant's  house  without  any 
authority,  and  refused  to  depart,  Defendant  may  lawfully 
use  force  to  expel  him ;  and  if,  in  such  contest,  the  Plain- 
tiff is  assaulted  and  hurt,  the  Defendant  can  justify  it  by 
this  Plea ;  in  which  case  the  Defendant  must  prove  : — 

That  the  House  was  his  ;  that  the  Plaintiff  came  into 
it  without  his  licence,  and  upon  no  lawful  occasion  ;  or  if 
a  Public  House,  into  which  he  might  lawfully  come,  that 
when  there,  he  misconducted  himself,  'made  a  noise  or 
riot,  or  offended  the  other  guests  ;  that  he  was  requested 
to  depart,  which  he  refused,  and  that  it  was  necessary  to 
have  recourse  to  force  to  compel  him. 

These  two  last  matters  of  Evidence  must  be  attended 
to,  and  strictly  proved ;  as  to  the  first,  Because  no  wrong 
is  done,  until  the  Plaintiff  refuses  to  depart  on  request : 
and  as  to  the  second,  the  Plea  must  be  referred  to :  for 
though  an  Assault  maybe  justified  by  a  refusal,  if  the 
Defendant  justifies  the  battery,  he  must  show  a  resistance 
on  the  Plaintiff's  part,  or  opposition  by  force,  for  if  he 
could  be  turned  out  of  doors  by  mere  force,(y)  there 

(/)  2  Stra.  1049.  Vid.  5  Corayn's  Dig.  3  M,  16.  8  Term  Rep. 
299. 


156  Of  the  Evidence  in  Assault          [CHAP.  V. 

was  no  necessity  to  beat  or  bruise  him,  and  they  can  only 
be  necessary,  or  warrantable,  where  he  opposes  the  attempt 
by  force,  nor  can  a  wounding,  it  should  seem,  under  any 
circumstances  be  justified  under  this  Plea. 

So  if  a  Plaintiff  comes  on  Defendant's  Close  for  any 
unauthorised  purpose,  and  is  desired  to  depart,  which  he 
refuses,  force  is  justifiable  under  this  Plea  to  compel  him. 
In  both  cases,  the  Evidence  is  the  same,  and  the  better 
opinion  seems  to  be,  that  there  is  no  necessity  for  the 
Defendant  to  show  his  title  to  the  House  or  Close,  nor 
need  he  go  into  any  Evidence  on  the  subject,  but  that  he 
may  rely  on  the  possession  only  ;  but  there  are  contradic- 
tory cases. 

In  all  cases  of  Evidence  under  this  Plea,  it  must  be 
taken  as  a  general  Rule,  that  to  warrant  the  Plea,  the 
act  of  the  Plaintiff  was  unlawful,  and  that  the  force  and 
violence  used  by  the  Defendant  to  the  Plaintiff  was  neces- 
sary and  unavoidable  :  for  under  no  other  circumstances 
can  force  and  violence  be  justified  ;  and  the  Defendant 

must  give  clear  Evidence  of  both. 

I 

As,  for  example,  if  Plaintiff  was  diverting  the  Defend- 
ant's Water-course :  (2  Roll.  Ab.  547.)  rescuing  his 
Cattle,  which  Defendant  had  taken  as  a  distress,  or  in  exe- 
cution :  the  Defendant  must  prove  that  the  Water-course 
was  his  ;  that  he  had  lawfully  distrained  the  Cattle,  or 
taken  the  Plaintiff's  Goods  in  execution ;  in  the  one  case 
by  showing  a  Tenancy,  or  that  the  Cattle  were  damage 
feasant,  and,  in  the  latter,  by  proving  an  execution  issued, 
and  the  Cattle  seized  under  it  by  the  Officer,  and  then 
that  the  Plaintiff  violently  and  unwarrantably  resisting, 


CHAP.  V.]        and  False  Imprisonment.  157 

was  opposed  by  the  Defendant,  and  in  the  course  of  such 
opposition  received  the  injury  for  which  the  Action  was 
brought. 

These  Rules  apply  to  every  case  of  this  Plea. 

If  the  Defendant  justifies  on  the  ground  of  moderately 
chastising  an  Apprentice  or  Servant,  he  must  give  Evi- 
dence that  they  are  so,  by  showing  the  Indenture  of  Ap- 
prenticeship, and  proving  the  execution  of  it :  by  showing 
the  Plaintiff  was  his  Servant  and  in  his  employment ;  and 
he  must  give  Evidence  of  the  faults  committed  by  them, 
such  as  disobedience  of  his  commands  for  example,  to 
show  that  the  offence  warranted  the  punishment  he  in- 
flicted. 

These  Pleas  apply  more  especially  to  Assault :  as  to 
false  Imprisonment,  they  are  more  numerous,  and  these 
are  chiefly  matters  of  justification  under  some  lawful  au- 
thority. This  may  be  in  cases  of  Imprisonment  where  no 
process  has  issued,  and  where  it  has. 

• 

I.  Of  a  Justification  of  Imprisonment  without  Process. 

Under  this  head,  it  may  be  observed,  that,  as  in  most  of 
the  cases  of  false  Imprisonment,  Justices  of  the  Peace, 
Constables,  and  all  Peace  Officers,  as  well  as  Officers  of 
the  Customs,  and  Excise,  are  Parties,  it  is  not  necessary 
to  prove  their  appointment,  but  merely  that  they  acted  in 
those  characters,  (g} 

(§•)  Phillips,  Evid.  180. 


158  Of  the  Evidence  in  Assault        [CHAP.  V. 

If  any  Person  makes  a  Riot,  Assault,  or  breach  of  the 
Peace,  he  may  be  taken  into  custody,  and  given  in  charge 
to  a  Constable,  or  other  Officer,  to  be  brought  before  a 
Justice  of  the  Peace  ;  or  the  Constable,  on  his  own  view 
of  such  proceedings,  may  take  him  into  custody.  This 
being  pleaded,  the  Defendant  must  call  witnesses  to  prove 
a  Riot,  Assault,  or  Affray, having  taken  place;  that  the 
Plaintiff  was  concerned  in  it ;  and  that  it  was  necessary, 
to  prevent  a  repetition  of  the  violence,  that  he  should  be 
taken  into  custody ;  that  he  was  then  given  in  charge  to 
the  Constable,  or  Peace  Officer,  under  the  charge.  If  the 
Constable  is  a  joint  Defendant,  he  is  not  called  upon  to 
prove  his  appointment :  it  is  sufficient  if  he  acts  as  a  Con- 
stable. If  he  was  present,  and  received  the  charge,  as  the 
offence  was  committed  in  his  view,  he  would  be  clearly 
warranted  in  taking  charge  of  the  Plaintiff :  and  it  seems 
too  that,  though  not  present,  he  can  justify  the  deten- 
tion. As,  however,  the  Constable  only  takes  charge  of 
the  Plaintiff  to  be  dealt  with  according  to  law,  the  last 
proof  must  be,  that  the  Plaintiff  was  brought  by  him  be- 
fore a  Magistrate,  and  discharged,  or  committed. 

If  the  Action  is  against  a  Constable -,  Watchman,  or  Peace 
Officer,  for  Imprisoning  the  Plaintiff,  the  Defendant  must 
show  in  Evidence,  at  the  Trial,  the  circumstances  under 
which  he  took  the  Plaintiff  into  custody,  such  as  being 
found  under  suspicious  circumstances,  with  property  sup- 
posed to  be  stolen,  at  an  unseasonable  hour  of  the  night  : 
these  are  good  justifications  for  an  Officer  with  a  War- 
rant ;  and,  if  proved,  will  entitle  the  Defendant  to  a  ver- 
dict.^) 

(A)  3  Taunt.  14. 


CHAP.  V.J          and  False  Imprisonment. 

.    So  a  Constable  can  justify  taking  a  Party  into  custody, 
on  a  charge  of  felony,  without  any  Warrant,  (i) 

In  that  case,  he  must  show  in  Evidence,  that  a  charge 
of  Felony  was  preferred  before  him,  and  the  Plaintiff  was 
charged  with  it ;  and  if  the  charge  was  in  writing,  it  should 
be  produced  :  but  he  is  not  called  upon  to  prove  a  Felony 
actually  committed,  for  he  will  be  justified,  whether  a  Fe- 
lony was  committed,  or  not. 

But  if  a  Felony  has  actually  been  committed,  either  an 
Officer,  or  Private  Person  may  justify  taking  a  Person  into 
custody,  on  fair  grounds  of  suspicion,  (k] 

Commanding  Officers  of  the  Navy,  or  Army,(/)  may 
also  justify  the  Imprisonment  of  their  Officers,  Soldiers,  or 
Crew  for  misconduct,  which  must  be  proved.  And  note, 
that  it  must,  in  every  case  of  a  justification  for  Imprison- 
ment, be  attended  to ;  that  the  Defendant  must  prove  the 
ground  of  the  detention  of  the  Plaintiff's  Person  clearly, 
and  distinctly,  in  every  respect,  on  account  of  the  jealou- 
sy with  which  the  law  looks  on  the  Imprisonment  of  the 
Person  of  the  Subject. 

2.  Of  Justification  of  Imprisonment  under  Process :  this  is 
of  the  Court,  in  civil  Actions,  or  under  Warrant  of  a  Ma- 
gistrate. 

1.   Of  imprisonment  under  Process  in  Civil  Actions. 
If  an  Officer,  or  private  Person,  justifies  under  Process, 

(i)  Dougl.  345.     3  Campb.  420.        (*)  1  Esp.  Dig.  N.  P.  353. 
(/)  I  Esp.  Dig.  N.  P.  354.     1  Terra  Rep.  53r. 


160  Of  the  Evidence  in  Assault      [CHAP.  V. 

he  must  take  care  that  it  is  not  void,  or  irregular  ;  that  is, 
that  it  is  a  good  Writ,  and  regularly  taken  out,  and  return- 
able.^) 

If  an  Diction  is  brought  against  an  Officer,  or  private 
Person,  for  false  Imprisonment,  as,  e.  g.  where  the  arrest 
was  for  Debt,  they  must  plead  a  full  justification  under  the 
Process  of  the  Court.(w)  Therefore,  if  it  is  by  Process 
from  an  inferior  Court,  the  Evidence  must  show,  that  the 
Party  was  subject  to  its  jurisdiction ;  and,  under  such 
Plea  by  the  Sheriff }  or  his  Officer, (o)  the  Defendant  must 
produce,  and  prove,  an  examined  copy  of  the  Writ,  or  the 
Writ  itself,  which,  it  must  appear,  was  returned ;  the  in- 
dorsement on  which  will  show,  for  what  sum  the  De- 
fendant was  to  be  arrested,  or  taken  into  custody :  this 
is  indispensable.(/>)  He  must  then  show  a  Warrant 
made  out  to  an  Officer,  and  if  the  Officer  is  a  Defend- 
ant, to  him,  which  should  be  produced.  The  under- She- 
riff can  always  prove  the  receipt  of  the  Writ  at  the  Office, 
and  state  to  what  Officer  the  Warrant  was  directed.  The 
Defendant  should,  lastly,  prove  the  arrest  by  such  Officer ; 
and  if  any  Person  is  joined  in  the  Action  with  the  Officer, 
he  has  a  justification  as  coming  in  his  aid. 

If  the  Plaintiff  in  the  original  Action,  or  a  Stranger,  is 
either  the  Defendant  alone,  or  jointly  with  the  Officer,  all 
the  Evidence,  last'  mentioned,  must  be  given,  and  also  an 
examined  copy  of  the  Judgment  in  the  original  Action,  if 
the  arrest  is  on  final  Process,  and  on  which  that  Writ  is 
founded. 

(m)  Vicl.  Cas.  1  Esp.  Dig.  N.  P.  356.     (n)  1  Esp.  Dig.  N.  P.  356. 

(o)  I  Stark.  413. 

(/i)  Drake  v.  Sykcs,  7  Term  Rep.  1 13. 


CHAP.  V.]          and  False  Imprisonment.  161 

2.  Of  the  Imprisonment  under  a  Warrant  from  a,'  Magis- 

trate. 

In  Actions  against  Constables,  it  is,  in  order  to  settle 
the  Evidence,  necessary  to  see,  when  he  is  sued  alone,  or 
joined  with  the  Justice  of  Peace  :  if  sued  alone,  where  the 
Justice  should  be  joined  with  him,  the  Plaintiff  must  un- 
der Stat.  24  Geo.  II.  be  nonsuited.  But  he  may  be  sued 
alone,  —  1.  Where  he  has  no  Warrant,  but  is  acting  by 
his  own  authority.  —  2.  Where  he  was  acting  under  a  Jus- 
tice's Warrant,  but  a  perusal,  and  copy  of  it,  having  been 
demanded,  he  has  not  given  a  copy  within  six  days,  or 
before  Action  brought  ;  but  where  he  has  given  a  copy 
before  Action  brought,  unless  the  Justice  whose  Warrant 
he  had,  is  joined  with  him,  the  Plaintiff  must  be  nonsuit- 


If  the  arrest  has  been  made  under  a  Warrant  from  a 
Justice  of  the  Peace,  the  Warrant  must  always  be  produ- 
ced in  Evidence  ;  and  this  by  Stat.  24  Geo.  II.  c.  44.  is  a 
justification  to  the  Constable,  though  the  Justice  had  no 
jurisdiction  :  but  it  must  be  proved  to  be  the  Warrant  of 
a  Justice  of  Peace  for  the  County,  and  his  signature  to  it 
must  be  proved  to  be  his  hand-writing  :  and  this  is  given 
in  Evidence  under  the  Issue  of  Not  Guilty,  which  is  plead- 
able  by  that  Statute. 

Beside  this  Evidence,  the  Plaintiff's  being  by  the  same 
Statute  required  to  give  Evidence  of  a  demand  of  the  pe- 
rusal, and  copy,  of  the  Warrant,  and  refusal  of  it  for  six 
days  ;  where  a  copy  -has  been  taken  of  it  by  the  Plaintiff, 

(?)  Esp.  Dig.  N.  P.  358. 


162  Of  the  Evidence  in  Assault      [CHAP.  V. 

the  Defendant  should  always,  at  the'Trial,  have  the  de- 
mand in  writing  which  was  served  on  him  of  the  perusal, 
and  copy,  ready  to  produce,  and  be  prepared  to  prove 
the  time  of  the  service  of  it,  and  whether  six  days  have 
elapsed  from  the  time  of  the  demand  before  Action  brought: 
for  which  purpose,  he  should  also  have  the  copy  of  the 
Writ  served  upon  him  to  produce,  as  on  proving  the  ac- 
tual time  of  the  service  of  demand,  and  the  Writ,  it  may 
nonsuit  the  Plaintiff:  for  although  he  may  not  have  given  a 
perusal,  and  copy,  of  the  Warrant  within  six  days  after 
demand  of  it,(r)  which  would  deprive  him  of  the  benefit 
of  the  Statute,  had  the  Action  been  immediately  brought, 
yet  if  the  Defendant  gives  a  copy  at  any  time  before  Ac- 
tion brought,  he  brings  himself  within  the  protection  of 
the  Statute. 

The  Constable  is  not  called  upon  to  prove  the  legality, 
or  the  illegality,  of  the  warrant.(j)  The  Justice  of  Peace, 
who  issued  it,  is  alone  answerable  for  it :  he  is,  therefore,  by 
the  Stat.  24  Geo.  II.  made  a  necessary  Defendant,  and,  as 
the  Constable,  would  be  entitled  to  a  Verdict,  and  his  Costs, 
in  consequence  of  producing  the  Warrant,  if  it  is  illegal, 
the  Justice  is  made  liable  to  pay  the  Costs  which  the  Plain- 
tiff would  have  to  pay  to  the  Constable. 

As  the  suing  out  of  the  Writ  is  the  commencement  of 
the  Action,  the  Plaintiff's  Attorney  is  bound  to  have  the 
Writ  at  the  Trial  to  show  the  time  of  the  actual  com- 
mencement of  it,  by  producing  the  first  Writ,  if  there 
has  been  no  Alias,  which,  in  cases  of  notice  to  Justices, 
must  be  sued  out  within  six  months  after  the  offence  com- 

(r)  5  East,  445.  («)  2  Bos.  &  Pull.  158. 


CHAP.  V.]    m  the  Action  of  false  Imprisonment.       163 

mitted.  But  as  the  Suit  is  often  commenced  on  an  Alias 
Writ,  which  issued  after  six  months,  the  first  not  being 
served ;  though  the  suing  out  of  the  first  Writ  would  save 
the  Action :  the  production  of  the  Alias  would  not.  It  is, 
therefore,  indispensable  for  the  Plaintiff's  Attorney,  in  this 
case,  to  have  at  the  Trial  the  first  Writ,  as  well  as  the 
Alias,  and  show  the  first  returned.(^) 

Of  Settling  the  Evidence  for  the  Defendant  in  Actions 
against  Justices  of  the  Peace. 

As  to  this  is  should  be  previously  observed,  that  as  the 
Defendant  is  entitled  to  a  month's  notice  of  Action,  which 
the  Plaintiff  is  bound  to  prove  at  the  Trial ;  the  same  cau- 
tion, as  before  stated  in  the  case  of  Constables,  is  to  be  at- 
tended to  in  this  case,  as  the  Defendant  may  avail  himself 
of  the  objection  to  the  Action  being  brought  too  soon. 
Objections  arising  on  the  face  of  the  notice,  as  to  its  illega- 
lity, are  taken  at  the  Trial. 

The  Defendant  should,  therefore,  be  prepared  to  prove 
the  actual  time  when  the  cause  of  Action  accrued,  so  that 
by  comparing  it  with  the  Writ,  it  may  appear,  that  the  Ac- 
tion was  not  brought  within  six  months  after  it ;  as,  by 
Stat.  24  Geo.  II.  c.  44.  if  brought  after  that  period,  the 
Plaintiff  must  be  nonsuited,  vid.  case  of  Weston  v.  Four- 
nier,  14  East,  491.(w) 

As  the  Plaintiff,  however,  gives  the  notice  of  Action, 
he  is  bound  not  to  proceed  within  one  month  from  that 

(0  7  Term  Rep.  7.  6  Term  Rep.  617.  14  East,  491, 
(«)  1  Esp.  Dig.  N.  P.  358. 


164  Of  the  Evidence  in  [CHAP.  V. 

time ;  therefore  the  service  of  the  notice  ascertains  when 
the  month  commences.(ctr)  and  the  day  of  the  service  is  in- 
clusive. 

2.  The  notice  of  the  Action  required  by  the  Statute,  be- 
ing to  enable  the  Justice  to  tender  amends,  and  afterwards 
to  plead  it ;  where  he  does  plead  it,  he  must  show  by  Evi- 
dence, at  the  Trial,  that  he  made  a  regular  tender  of  the 
exact  sum  pleaded. 

3.  As  a  Justice  of  Peace  may  either  commit,  or  seize, 
the  Party's  Goods,  in  consequence  of  a  Conviction,  or  for 
something  which  has  passed  in  his  presence  ;  it  may  be 
necessary  to  consider  them  separately. 

If  the  Action  is  for  an  illegal  commitment  by  the  Jus- 
tice, in  consequence  of  Proceedings  before  him  on  an  In- 
formation, he  must  accurately  prove  the  regularity  of  his 
Proceedings,  and  the  Information  laid  before  him,  and  the 
Proceedings  on  it :  as  these  are  taken  in  writing  by  himself, 
they  must  be  necessarily  produced  and  verified. 

This  occurs  in  the  case  of  Convictions,  and  requires  at- 
tention.^) 

If  the  Plaintiff  has  been  convicted  under  a  Statute  be- 
fore the  Defendant,  as  a  Justice  of  the  Peace,  and  the  pun- 
ishment is  Imprisonment,  the  production  of  that  Conviction 
is  sufficient  Evidence  for  the  Magistrate,  provided  it  is 
good  on  the  face  of  it. 

i 

(cc)  Castle  -v.  Burdett,  3  Terra  Rep.  623. 
(t/)  Vid.  Gray  v.  Cookson,  16  East.  13. 


CHAP.  V.]  the  Action  of  False  Imprisonment.  165 

So  if  the  Action  is  for  imprisoning  the  Plaintiff,  by  rea- 
son of  not  paying  the  penalty  :  the  Magistrate  is  only  re- 
quired to  produce  his  own  Conviction,  and  prove  the 
Proceedings  before  him,  and  his  hand- writing  to  the  Con- 
viction. The  Plaintiff  may,  however,  in  both  cases,  show, 
that  on  the  face  of  it,  it  is  bad  in  point  of  law  ;  in  that  case 
he  will  have  a  verdict. 

Where,  however,  the  Conviction  has  been  quashed, 
as  it  then  affords  no  justification,  the  Justice  has  then 
only  to  rely  on  the  protection  of  the  Stat.  43  Geo.  III.  c. 
141,  to  show,  that  the  Conviction,  and  Proceedings,  were 
not  done  maliciously,  and  without  probable .  cause ;  in 
which  the  Action  should  be  not  Trespass  vi  et  armis,  but 
Case,  which  will  nonsuit  the  Plaintiff. 

In  that  case,  the  Defendant,  the  Justice  of  Peace,  must 
bring  forward  Evidence  of  what  passed  before  him  when 
he  made  the  Conviction ;  and  show  by  the  facts  which 
appeared  before  him,  that  he  had  convicted  the  Plaintiff 
on  probable  grounds,  and  not  from  malicious  motives. 

But  as  Justices  of  Peace  may  also  commit  for  something 
which  passed  in  their  own  presence,  if  an  Action  is  brought 
for  so  doing,  the  Defendant  must  be  well  prepared  to  jus- 
tify his  own  conduct ;  such  as  : — 

If  he  justifies  a  Committal,  on  account  of  the  Plaintiff's 
having  been  guilty  of  a  Contempt  to  him  when  in  the  ex- 
ecution of  his  Office,  (r)  he  must  be  prepared  to  show  what 
the  Contempt  was,  by  calling  witnesses  who  were  present, 
and  heard  what  passed. 

(z)  1  Esp.  Dig.  N.  P.  354, 


Of  the  Evidence  in  Action,  &c.         [CHAP.  V. 

So  he  must  not  commit  verbally,  but  by  a  Warrant,  spe- 
cifying the  offence.(c) 

So  he  may  commit  a  Person  for  refusing  to  be  bound 
over  to  the  Assizes,  or  Sessions,  as  a  witness  on  a  pro- 
secution for  Felony,  (b)  In  that  case,  the  Defendant  must 
give  the  charge  in  Evidence  of  the  Felony,  to  show  that 
there  was  ground  for  binding  the  Witness  over ;  second- 
ly, that  the  Witnesss's  Evidence  appeared  to  be  material ; 
and,  lastly,  that  he  was  regularly  called  upon  to  enter  into 
a  Recognizance  to  appear  at  the  Assizes  or  Sessions,  and 
that  he  refused  to  become  bound. 

So  he  may  commit  a  Person  for  not  paying  the  penal- 
ty on  a  Conviction,  to  levy  which  a  Warrant  had  been 
issued,  and  under  which  no  levy  had  been  made :  if  the 
Act,  under  which  the  Conviction  takes  place,  require  a 
previous  return  to  it,  "  that  no  goods  were  found  on  which 
a  levy  could  be  made,"  and  that  after  such  return  and 
non-payment  the  Defendant  should  be  imprisoned;  in 
that  case,  the  Justice  should  give  in  Evidence  the  Con- 
viction, the  Warrant  and  the  return  as  before  stated,  and 
then  a  demand  on  the  Defendant  to  pay,  his  failure,  and 
then  the  copy  of  the  Warrant  of  committal. 

But  in  the  case  of  a  Committal  under  a'  Conviction 
under  Statute  13  Geo.  III.  c.  80.  (c]  for  killing  Game  on  a 
Sunday,  the  Justice  may  verbally  commit,  if  the  penalty 
is  not  then  paid,  and  he  has  issued  his  Warrant  to  levy  it, 
and  to  be  kept  in  custody  till  the  Warrant  is  returned. 

(a)  Mayhew  i>.  Locke,  2  Marsh.  377. 

(6)  3  Mau.  &Selw.  1.  (c)  7  East.  533; 


Of  the  Evidence  in  Action  for  Adultery.  167 


CHAPTER  VI. 


OF  THE   EVIDENCE    IN   THE   ACTION   FOR    ADULTERY. 

JL  HE  first  step  in  Evidence,  at  the  Trial  of  this  Action, 
always  is,  to  prove  the  Marriage  of  the  Plaintiff  with  his 
Wife,  whom  he  charges  to  have  had  criminal  conversation 
with  the  Defendant. 

In  support  of  that  fact,  Evidence  of  reputation,  coha- 
bitation, the  admission,  or  representation  by  the  Parties 
themselves,  is  insufficient.  There  must  be  Evidence  of 
the  actual  solemnization  of  the  Marriage. 

The  usual  Evidence  of  such  Marriage,  is  the  produc- 
tion of  a  copy  of  the  Register  of  the  Marriage  Certificate 
from  the  books  of  the  Church  where  the  ceremony  was 
performed,  which  must  be  examined  with  the  original. 
But  this  may  be  rendered  unnecessary,  by  producing  a 
witness  who  was  present  at  the  Marriage,  and  can  prove 
its  having  taken  place  :  that  is  the  best  Evidence  of  the 
fact ;  but  as  that  is  not  always  to  be  had,  it  will  be  suffi- 
cient to  call  Persons  who  knew  the  Wife  before  Marriage, 
and  of  course  her  maiden  name,  as  described  in  the  Cer- 
tificate ;  that  she  afterwards  appeared  as  the  Wife  of  the 


168  Of  the  Evidence  in  [CHAP.  VI. 

Plaintiff,  and  by  his  name  :  the  bare  Register,  without 
connecting  the  Parties  with  it,  is  not  of  itself  sufficient ; 
for  that  the  proof  of  their  hands-writing  in  the  book  may 
be  had.  (a) 

If  the  Marriage  has  taken  place  abroad,  it  must  be 
proved  that  the  ceremony  was  pursuant  to  the  laws  of  the 
country,  and  the  Marriage  valid  according  to  those  laws : 
that  is  a  question  of  law,  or  received  public  opinion,  which 
must  be  proved  as  a  distinct  fact.(^) 

So  any  Marriage  among  Sectaries,  as  Quakers,  and  the 
like,  if  good  according  to  that  particular  r  ligion,  is  a 
sufficiently  good  Marriage  :  but  it  must  be  proved  that  it 
was  so  received,  as  well  as  that  the  Marriage  was  solemn- 
ized according  to  the  ceremonies  of  that  religion. 

But  a  copy  of  a  Register,  from  a  foreign  Chapel,  of  a 
Marriage  solemnized  there,  is  not  Evidence. (c)  Nor  are 
Fleet  Marriages. 

The  fact  of  the  adulterous  intercourse  between  the  De- 
fendant and  the  Plaintiff's  Wife  must  then  be  proved  :(d) 
this  of» course,  varies  with  circumstances  ;  and  is  usually 
proved  by  witnesses  who  have  seen  the  Parties  in  a  situa- 
tion which  precludes  any  doubt  of  the  fact. 

The  last  Evidence,  in  this  case,  goes  to  the  damages, 
and  these  depend  upon  many  circumstances  ;  as  on  the 

0)  See  Phillips,    (d)  Vid.  Leader  v.  Barry,  1  Esp.  N.  P.  C.  353. 
(c)  Leader  v.  Barry,  1  Esp.  N.  P.  C.  353. 
(rf)  Reade  v.  Passer,  1  Esp.  N.  P.  C.  213. 


CHAP.  VI.]  the  Action  for  Adultery.  169 

situation  in  life  of  the  Plaintiff";  of  the  degree  of  happiness 
and  comfort  which  he  enjoyed  with  his  Wife,  and  the 
degree  of  affection  which  they  had  previously  entertained 
for  each  other  ;  on  the  means  by  which  the  Defendant 
effected  the  Seduction,  as  if  by  being  admitted  into  the 
Plaintiff 's  house  as  his  friend  or  Intimate,  and  the  abuse 
made  of  such  confidence  and  situation  ;  so  that  he  was 
the  Plaintiff 's  relative,  and  in  that  character  received  into 
the  family  without  suspicion ;  and  the  Plaintiff 's  Wife 
had  till  then  been  considered  as  a  woman  of  chaste  morals 
and  character,  and  that  she  had  children  and  a  family  by 
her  Husband.  All  these  matters  go  in  aggravation  of  the 
damages. 

These  facts  are  generally  proved  by  \)iva  voce  Evidence 
of  Persons  who  were  acquainted  with,  or  lived  in  intimacy 
with  the  Plaintiff,  and  were  acquainted  with  his  mode  of 
living  and  circumstances :  but  there  is  written  Evidence 
also  admissible. 

Of  this  description  are  letters  which  have  passed  in 
correspondence  between  the  Husband  and  Wife,  where, 
from  necessity,  they  were  living  in  different  places,  as 
showing  their  affection  for  each  other.(e)  This  is,  how- 
ever, to  be  taken  with  caution,  as  capable  of  being  adopt- 
ed by  collusion  between  the  Husband  and  Wife  to 
enhance  the  damages.  The  particular  situation,  therefore, 
at  the  time  the  letter  passed  should  be  clearly  proved ; 
such  as  that  their  separation  was  unavoidable  in  fact ;  to 
place  the  correspondence  beyond  suspicion. 

(<?)  Edwards  i>  Crock,  4  Esp.  N.  P.  C.  3y. 


170  Of  the  Evidence  in  [CHAP.  VI. 

So  letters  written  by  the  Defendant  to  the  Plaintiff's 
Wife  are  Evidence  against  him.(/) 

Of  settling  the  Evidence  for  Defendant. 

This  is  either  as  an  answer  to  the  Action  on  the  Plea 
of  Non  Guilty,  or  in  mitigation  of  damages. 

As  a  defence,  the  Defendant  may  give  in  Evidence, 
that  the  Husband  suffered  his  Wife  to  live  openly  as  a 
common  Prostitute,  (g-) 

But  his  conniving  at  her  Prostitution,  with  a  particular 
Person,  it  is  said,  will  only  go  in  mitigation  of  damages  : 
but  Lord  Kenyan  'thought  it  went  to  the  ground  of  the 
Action.(^) 

That  learned  judge  was  of  the  same  opinion,  that  when 
Husband,  and  Wife,  lived  in  a  state  of  separation,  the  Ac- 
tion would  not  lie.(z) 

He  was,  likewise,  of  opinion,(&)  that  if  the  Husband  ne- 
glected his  Wife,  and  lived  openly  in  adultery  with  another 
woman,  that  he  could  maintain  no  Action  for  another  com- 
mitting adultery  with  his  Wife.  But  Lord  Afaanley  held 
otherwise.  (/) 

In  mitigation  of  damages,  the  usual  ground  taken  by 

(/)  Bull.  N.  P.  28.      ($•)  Bull.  N.  P.  27. 

(A)  Bull.'  N.  P.  27.        (i)  Weedon  u.  Timbrel,  5  Term  Rep.  357. 

(*)  Wyndham  -v.  Ld.  Wycombe,  4  Esp.  N.  P.  C.  16. 

(0  Bromley  T.  Wallace,  4  Esp.  N.  P.  C.  237. 


CHAP.  VI.]  the  Action  for  Adultery.  171 

the  Defendant,  is  the  misconduct  of  the  Husband  him- 
self. 

His  conniving  at  conduct  in  his  Wife  unbecoming  a 
married  woman  ;  suffering  her  to  accompany  the  Defend- 
ant to  improper  places ;  to  be  in  company  with  him  at  an 
unseasonable  time  ;*  being  himself  .brutal  in  habits,  and 
cruel  to,  or  negligent  of,  his  Wife,  or  having  turned  her 
out  of  doors ;  being  instrumental  to  his  own  dishonour,  as 
where  he  showed  her  naked  in  a  Bath  to  the  Defendant ; 
that  she  was  a  woman  of  loose  character,  and  had  been 
criminal  with  others. 

These  are  facts  which  are  only  capable  of  proof  by  wit- 
nesses ;  and  these  matters  will  suggest  to  what 'inquiry,  in 
preparing  Evidence  on  this  subject,  attention  ought  to  be 
directed.  Exculpatory  Evidence  is  safe :  but  where  it  is 
attempted  to  fix  misconduct,  guilt,  criminality,  or  neglect 
of  the  Wife,  on  the  Husband,  it  must  be  clearly  made  out, 
or  it  will  be  dangerous. 


172  .      Of  Evidence  in  [CHAP.  VII. 


CHAPTER  VII. 


OF  SETTLING  THE  EVIDENCE  IN  THE  ACTION  OF    REPLE- 
VIN. 

A  HIS  being  an  Action  of  Trespass,  for  taking  the  Plain- 
tiff's goods,  and  chattels,  the  General  Issue,  non  cepit,  de- 
nies the  taking ;  and  if  the  Defendant  does  so  plead,  he, 
the  Plaintiff,  Is,  of  course,  bound  to  prove  the  fact  of  his 
having  done  so. 

This  Evidence,  however,  seldom  occurs,  the  Defendant 
by  his  Plea,  Avowry,  or  Cognizance,  admitting,  and  justify- 
ing, the  taking :  as  by  the  Plea  of  Justification,  that  the 
goods  taken  were  not  the  Plaintiff's,  but  Defendant's  own, 
or  the  goods  of  a  Stranger,  by  whose  order  he  took  them. 
This  being  a  question  of  fact,  the  property  must  be  pro- 
ved to  belong  to  whomsoever  it  is  stated  to  be  in  the 
Plea. 

The  Avowry,  or  Cognizance,  admits  the  taking  of  the 
goods  in  question ;  the  first,  on  the  Party's  own  right,  the 
other  as  Bailiff,  or  Servant,  and  is  for  several  causes, 
upon  which  the  difference  of  Evidence  must  be  observed, 
as — 


CHAP.  VII.]        the  Action  of  Replevin.  173 

1 .  For  Rent  Arrear. 

This  is  the  most  important  head  in  Replevin :  and  these 
Rules  must  be  observed. — 1.  If  the  Avowry  is  for  Rent 
arrear,  the  Defendant  must  first  prove,  that  the  Plaintiff 
was  his  Tenant,  or  Tenant  to  him  named  in  the  Cogni- 
zance, and  held  the  Lands,  or  Premises,  for  the  arrear  of 
which  the  Distress  is  made,  at  the  Rent  stated  in  the 
Avowry  :  if  there  is  a  Lease,  Evidence  of  these  facts  is 
completely  made  out,  by  producing  the  Lease,  and  pro- 
ving the  Execution  of  it  by  the  Plaintiff,  by  the  subscri- 
bing witness :  if,  however,  the  holding  is  by  parol,  the 
Defendant  must  prove  the  Tenancy,  by  showing  payment 
of  Rent,  or  an  actual  letting  at  the  Rent  stated  in  the  Avow- 
ry, or  Cognizance;  which  may  be  done  either  by  an  agree- 
ment in  writing,  though  not  under  a  Seal,  or  by  a  witness 
who  knows  the  facts. 

If  the  Plaintiff  holds  as  Tenant,  under  a  Lease,  it  is  ab- 
solutely necessary,  that  it  should  be  consulted  carefully  in 
preparing  the  Evidence,  as  any  variance  between  the  Rent 
stated  to  be  in  arrear,  or  the  holding  will  be  fatal :  if,  there- 
fore, on  investigating  the  Covenants  in  the  Lease,  they  are 
found  to  vary  from  the  Avowry,  or  Cognizance,  it  should 
be  amended,  (a)  Thus,  e.  g.  if  the  Avowry  stated  the  Rent 
to  be  paid  quarterly,  and  it  was  half-yearly,  it  would  be 
fatal.  The  same  caution  is  to  be  used  where  the  holding 
is  not  by  Lease  ;  peculiar  caution  is,  therefore,  necessary 
in  settling  the  Evidence  in  this  respect. 

2.  It  often  happens,  that  the  reservation  of  the  Rent 
(a)  4  Taunt.  320. 


174  Of  the  Evidence  in          [CHAP.  VII. 

requires  a  demand  to  be  made  of  the  Rent  before  there 
can  be  a  Distress  made  ;  where  that  is  the  case,  the  De- 
fendant must  be  prepared  to  prove  that  demand  by  a 
witness. 

Wherever  there  is  a  penalty  for  non-payment  of  Rent, 
as  for  ploughing  of  old  meadow,  ex.  gr.  where  the  Rent 
is  increased,  the  Defendant  must  prove  a  demand.(6) 

3.  The  Defendant  is  not  required  to  prove,  'that  the 
exact  Rent  claimed  by  his  Avowry  or  Cognizance  to  be 
due  to  him,  is  in  fact  in  arrear ;  for  if  he  proves  only  part 
of  it,  it  is  sufficient.     As  he  may  avow  for  half  a  year's 
Rent  as  unpaid,  and  though  he  proves  but  a  quarter  due, 
he  shall  recover  pro  tanto. 

4.  Wherever  the  Plaintiff  has  paid  Rent  to  the  Defend- 
ant,^) the  latter,  in  Replevin,  is  never  called  upon  to 
prove  his  title  ;  for  in  this  Action,  receipt  of  Rent  is  title 
to  the  Premises  for  the  Rent  of  which  he  has  distrained.^) 
But  as  a  Person  may  become  entitled  to  a  reversion  with 
a  right  of  Distress,  and  be  obliged  to  distrain  for  it  before 
he  has  received  any  Rent,  in  that  case  he  must  regularly 
deduce  his  title,  and  prove  the  whole  of  it  by  regular  Evi- 
dence. 

5.  These  are  matters  of  fact,  and  proveable  by  vivd 
voce  Evidence.      But  where  the  Defendant  has  made 
Cognizance  as  Bailiif  to  any  one,  that  Person,  as  Bailiff  to 
whom,  Defendant  made  Cognizance,  cannot  be  a  witness ; 

(A)  Hob.  133.  (c)  Per  Lord  Kenyan,  1  Esp.  N.  P.  C.  91. 

(rf)  2  Wils.  208. 


CHAP.  VII.]         the  Action  of  Replevin.  175 

for  Defendant  is  but  a  Servant,  and  the  Rent  to  be  recov- 
ered by  the  Distress  is  on  his  account ;  he,  therefore,  is 
interested^  and  cannot  be  called. 

Of  the  Plaintiff's  Evidence  in  bar  of  the  Avowry. 

1.  If  the  Plaintiff  has  never  paid  Rent  to  the  Defend- 
ant, he  may  deny  the  holding  "  non  tenuit  modo  et  forma, 
&c."  and  put  the  Defendant  on  proof  of  his  title.     In  that 
the  Issue  lies  on  the  Defendant,  and  he  must  prove  it  by 
witnesses,  or  otherwise. 

2.  He  may  also  deny  that  any  Rent  was  in  arrear,  by 
proving  payment,  either  by  a  receipt  or  otherwise,  of  all 
Rent  due  up  to  the  last  day  of  payment  preceding  the 
Distress  made.     This  is  under  the  Plea  of  riens  in  arrere, 
which  if  pleaded  alone,  admits  the  holding. 

3.  He  may  plead  and  prove  a  tender  of  the  Rent  due, 
which  must  have  been  before  the  Distress  was  made. 
This  is  proved  as  ante,  page  111. 

Of  the  Evidence  under  the  Avowry  for  Damage  feasant.(e) 

1.  Where  Cattle  are  found  trespassing  on  the  Defend- 
ant's own  land,  or — 2.  On  a  Common  to  which  he  has 
a  right.  In  this  case,  the  question  generally  turns  upon 
the  fences  being  out  of  repair,  and  on  whom  the  liability 
to  repair  lies ;  for  if  a  man's  Cattle  strays  into  his  neigh- 
bour's ground,  and  he  is  liable  to  repair  the  fences,  he 

(e)  8  Rep.  147 


176  Of  the  Evidence  in         .  [CHAP.  VII. 

cannot  lawfully  impound  the  Cattle  ;  and  if  he  does,  the 
owner  may  replevy  them.     As  to  liability  to  repair  the 

fences,  he  who  has  the  back  of  the  ditch  is  bound  to  re- 

• 

pair. 

On  the  first  point,  the  Defendant  is  required  to  prove, 
that  he  was  in  possession  of  the  land  where  the  Distress 
was  made,  and  that  the  Cattle  were  there  depasturing 
when  taken,  for  if  they  escape  out  of  Defendant's  ground, 
he  cannot  follow  them  ;  that  they  belonged  to  the  Plain- 
tiff; and,  lastly,  the  extent  of  the  injury  done  to  h\m.(f) 

Questions  on  Common  right  require  more  proof. 

The  Evidence  required  there  is,  in  the  first  place,  that 
the  Defendant  was  himself  entitled  to  Common ;  that  is 
proved  by  showing  that  the  place  where  the  Cattle  were 
found  is  the  waste  of  the  Manor ,  that  the  Defendant  is 
in  possession  of  land,  part  of  the  Manor.:  and  that  the 
Owners  or  Occupiers  of  his  land  have  been  always  used 
to  turn  in  on  it. 

This  is  the  case,  where  the  Cattle  taken  are  those  of 
a  Stranger.  But  a  Commoner  may  also  take  the  Cattle 
of  another  Commoner,  which  is  the  case  only,  where  such 
latter  Commoner  has  Common  for  a  limited  number  only  : 
in  that  case,  the  Defendant  must  show  the  immemorial 
usage  of  the  Common  ;  that  such  Commoner  was  only 
so  entitled  to  a  given  number  and  that  more  of  his  Cattle 
being  found  turned  in  than  he  was  entitled  to  that  the 
overplus  only  were  distrained. 

(/)  3  Esp.  N.  P.  C,  95. 


CHAP.  VII.]  the  Action  of  Replevin.  177 

The  right  of  Common  being  claimed  by  prescription, 
which  is  always  stated  in  the  Avowry,  Evidence  of  that 
is  essential  to  the  Plaintiff  Js  case.  That  prescriptive  right 
is  shown,  by  calling  old  witnesses,  who  remember  the 
Common  being  used  by  the  Defendant,  or  former  Posses- 
sors of  the  Defendant's  Estate,  by  turning  in  their  Cattle, 
as  far  back  as  they  can  remember.  Uninterrupted  usage 
establishes  this  right,  which  is  proved  as  is  just  stated. 
There  may  be  also  matters  of  Evidence  to  this  effect 
found  in  the  books  of  the  Steward  of  the  Manor. 

It  must  be  particularly  attended  to  and  observed  in  set- 
tling the  Evidence  in  this  case,  that  it  precisely  tallies  with 
the  prescriptive  right  as  laid  in  the  Pleadings ;  for  any 
variation  in  a  material  part  will  be  fatal. 

As  if  the  prescription  stated  by  Defendant,  was  for  all 
Commonable  Cattle,  and  it  was  proved  to  be  for  Sheep 
and  Horses  only,  the  Defendant  would  fail.(^) 

Of  the  Evidence  when  the  Distress  is  for  Tolh. 

1.  If  the  Toll  is  claimed  for  passing  a  public  Highway, 
that  is  Toll  through  ;  in  that  case,(^)  the  Defendant  must 
give  Evidence  of  the  payment  of  it  from  time  immemo- 
rial, by  the  testimony  of  ancient  Persons  who  remember 
it,  and  can  speak  to  its  having  always  been  paid  by  Per- 
sons using  the  Highway  ;  but  that  alone  is  not  suffi- 
cient, (i)  He  must  show,  that  he  has  done  some  public 

(#)  Bull.  N.  P.  59. 

(Vi)  1  Esp.  Dig.  N.  P.  382.  2  Wils.  299.  Fitzh.  26.  pi.  2. 
(i)  2  Wils.  296. 

z 


178  Of  the  Evidence  in  [CHAP.  VIL 

duty  or  servic,  such  as  repairing  part  of  it ;  that  is,  there 
must  be  some  consideration  shown  for  claiming  what 
would  otherwise  be  an  exaction  on  the  Subject.  And  the 
Plaintiff  must  prove  his  prescription  precisely  in  the  terms 
it  is  laid. 

If  Toll  traverse  is  claimed,  the  Defendant  should  show- 
that  the  Soil,  over  which  the  way  went,  was  his,  and  im- 
memorial usage  of  the  payment  of  the  Toll,  and  that  the 
Plaintiff  was  going  over  the  way  when  the  Toll  was  de- 
manded. 

2.  If  the  Toll  is  claimed  as  due  for  Fairs  or  Markets, 
it  may  be  claimed  either  by  Grant  from  the  Crown,  or  by 
Prescription,  which  supposes  a  previous  Grant. 

If  it  is  claimed  by  Grant :  the  Grant  from  the  Crown, 
must  be  produced  and  proved  under  the  Great  Seal  ;(&) 
and  that  is  sufficient  to  show  the  right  of  Defendant ;  and 
then  the  Defendant  must  prove  that  the  Plaintiff  was  using 
the  Fair  or  Market  when  it  was  claimed,  that  is,  that 
he  was  exposing  to  sale  some  commodity  usually  sold 
there. 

Toll  of  this  description  claimed  by  prescription,  must 
be  proved  to  have  been  paid  from  time  immemorial,  as 
before-mentioned,  by  ancient  Persons. 

If  the  Toll  is  claimed  as  due  for  landing  Goods  at 

(#)Cowp.  661. 

(0  1  Esp.  Dig.  N.  P.  384. 


CHAP.  VII.]          the  Action  of  Replevin.  179 

Ports  or  Quays,  the  Evidence  is  precisely  similar  to  that 
in  the  case  just  mentioned  of  Tolls  on  Highways.(/) 

If  the  Avowry  is  for  a  Heriot,  the  Defendant  must 
show  the  custom  of  the  Manor :  this  is  done  by  the 
Court  Rolls,  or  Entries  in  the  Steward's  books,  and  show- 
ing the  usage  of  paying  it. 

(0  I  Esp.  Dig.  N.  P.  384. 


180  Of  the  Evidence  in  [CHAP.  VIII- 


CHAPTER  VIII. 


OF    SETTLING   THE    EVIDENCE     IN    THE    ACTION    OF 
TRESPASS. 

1.     LrF  the  Evidence  for  the  Plaintiff. 

The  Action  of  Trespass,  properly  so  called,  lies  either 
for  an  entry  on  the  Lands  or  Premises  of  another,  and  for 
some  injury  done  there,  or  for  taking  his  Goods.  These 
points  of  preliminary  Evidence  are  in  all  cases  to  be  ob- 
served, (a) 

1.  That  in  Trespass  for  either,  the  Plaintiff  must  give 
Evidence  of  his  being  in  possession.     As  if  it  is  for  break- 
ing and  entering  his  Close,  that  he  was  in  possession  of  it 
when  the  Trespass  was  committed  :    if  for  taking  his 
Goods,  the  same  Evidence  of  being  possessed  of  them 
should  be  given.     These  are  matters  of  fact,  and  must  be 
proved  by  a  witness. (6) 

2.  That  in  Trespass  for  an  injury  done  to  the  Land, 
the  Plaintiff  is  not  called  upon  to  prove  any  title  to  it 
against  a  wrongdoer,  but  may  rely  on  his  possession  only : 

(a)  1  Esp.  Dig.  N.  P.  397,  (£)  4  Term  Rep.  489. 


CHAP.  VIII.]  the  Action  of  Trespass.  181 

but  if  it  is  Trespass  for  taking  his  Goods,  the  Plaintiff 
must  prove  a  property  in  them.(<?) 

But  this  property  need  not  be  the  actual  property  in  the 
Goods ;  a  special  property  is  sufficient.  As  the  Sheriff 
may  maintain  Trespass  for  taking  away  Goods  which  he 
had  taken  in  execution :  so  may  a  Carrier  for  Goods 
delivered  to.  him  to  be  carried. (d] 

3.  Where  the  Plaintiff  sets  out  the  Abuttals   of  the 
Close,  in  which  he  complains  of  the  Trespass  being  com- 
mitted,^) he  must  prove  them  accurately  as  laid  ;  that  is, 
he  must  prove,  that  what  he  describes  as  the    abuttal 
to  the  East  is  to  the  East ;  for  should  it  turn  out  to  be  to 
the  North,  or  any  other  point,  he  would  be  non-suited. 
And  in  a  late  case,(/)  where  Plaintiff  described  the  land 
as  abutting  to  the  East  on  land  of  A.  B. ;  in  fact,  A.  B. 
was  not  the  Owner  of  that  piece  of  land,  but  another  Per- 
son :  the   Plaintiff  was  non-suited.     This  is   matter  of 
parol  proof,  by  witnesses  who  know  the  Close  in  question, 
and  the  bounds  of  it. 

4.  If  the  Trespass  is  for  breaking  and  entering  his 
Close,  the  Plaintiff  must    prove  the  Parish  laid  in  the 
Declaration  to  be  that  in  which  the  lands  lie  ;  where  this 
question  is  raised,  it  is  generally  proved  by  witnesses  who 
have  either  perambulated  tEe  Parish,  or  by  Persons  who 
have  served  Parish  Offices,  or  collected  the  Taxes,  and  so 
are  acquainted  with  its  boundaries. 

5.  If  the  Declaration  states  the  Trespasses  as  commit- 

(c)  1  East.  244.  (c/)  Cfo.  Eliz.  639.          (^Bull.  N.  P.  86. 

(/)  Ironmonger  v,— — -Surry  Lent  Assizes  1818. 


Of  the  Evidence  in  [CHAP.  VIII. 

ted  "  at  different  days  and  time  between  the  day  of,  &c. 
and  the  time  of  commencing  the  Suit :"  if  the  Plaintiff 
goes  for  damages  for  the  time  laid,  he  must  show  for  how 
many  days  or  months  the  Defendant  continued  the  Tres- 
pass. 

6.  In  the  case  of  a  New  Assignment,  if  it  is  of  a  differ- 
ent place  from  that  laid  in1  the  Declaration,  the  Plaintiff 
must  confine  his  Evidence  to  the  place  laid  in  the  New 
Assignment.^)     In  settling  Evidence,  therefore,  on  an 
Issue  so  joined,  it  will  be  unnecessary  to  bring  any  Evi- 
dence as  to  the  first  laid  place. 

7.  In  Trespass  for  taking  Goods,  (h)  the  Plaintiff's 
Evidence  is  confined  to  these  Goods  only  mentioned  in 
the  Declaration.     If  he,  therefore,  ex.  gr.  complained  of 
the  taking  of  his  Oxen  and  Sheep,  he  could  not  give  Evi- 
dence of  taking  his  Horses. 

8.  If  the  Action  of  Trespass  is  joint  against  several 
Defendants,  the  Plaintiff  cannot  have  a  joint  verdict  against 
all,  unless  he  proves  the  Trespass  done  when  all  of  them 
were  present  at  the  same  time.     He  should,  therefore, 
endeavour  to  get  Evidence  of  such  joint  act ;  for  though 
he  may  have  a  verdict  against  one  only,  if  there  is  a 
verdict  for  any  of  the  joint  Defendants,  he  must  pay  his 
Costs. 

9.  The  conclusion  of  the  Declaration  in  Trespass  being, 

(g-)  Foster  v.  Crouch,  Cro.  Eliz.  492. 

(A)  Bull.  N.  P.  24. 

(0  1  Esp.  Dig.  N.  P.  427. 


CHAP.  VIII.]          the  Action  of  Trespass.  183 

"  And  other  wrongs  to  the  said  Plaintiff  then  and  there 
did,"(z)  it  might  seem  that  these  general  words  would  ad- 
mit of  the  Plaintiff's  giving  Evidence  of  any  wrong  con- 
nected with  the  Trespass  :  but  it  is  not  so  ;  it  is  confined 
to  cases  only  of  aggravation,  matters  which  would  not  of 
themselves  bear  an  Action,  or  which  could  not  with 
decency  be  put  on  the  Record. — See  ante.  p.  152. 

As  in  Trespassj  for  breaking  and  entering  the  Plaintiff 's 
house,  and  taking  his  Goods,  it  has  been  already  observ- 
ed, that  he  cannot  give  Evidence  of  taking  any  Goods  not 
specifically  laid  in  the  Declaration,  but  he  can  give  in 
Evidence,  that  the  Defendant  while  there,  behaved  with 
great  indelicacy  or  rudeness  to  the  Plaintiff 's  family.  This 
may  direct  the  settling  of  the  Evidence  in  these  points, 
and  prevent  the  loading  of  the  case  with  what  is  unneces- 
sary or  inadmissible. 

I  shall  now  consider  the  Evidence  applicable  to  the 
different  heads  of  this  Action,  and  how  the  Evidence 
applying  to  each  is  to  be  settled. 

The  Pleas  are  only,  Not  Guilty,  and  a  Justification. 

1.   Of  settling  the  Evidence  in  Actions  of  Trespass  arising 
from  cases  of  Tenancy. 

1.  The  most  usual  Actions  of  this  description  are  cases 
for  an  irregular  Distress. 

Under  this  head,  as  the  Plaintiff  need  only  prove  the 
(0  i  Esp.  Dig.  N.  P.  427. 


184  Of  the  Evidence  in  [CHAP.  VIII. 

taking  of  the  Goods  stated  in  the  Declaration,  by  calling  a 
witness  to  prove  the  fact  and  the  value  of  the  things 
taken  :  the  Evidence  lies  on  the  Defendant  to  prove  a 
Justification. 

Where  the  Tenant  brings  his  Action  for  such  Cause, 
there  is  no  justification  ever  put  on  the  Record,  the 
Statute  11.  Geo.  II.  c.  19.  s.  21. (A1)  allowing  the  Defend- 
ant to  plead  the  General  Issue,  not  Guilty,  and  to  give  in 
Evidence  the  special  matter  of  Justification  ;  that  is,  the 
taking  of  the  Goods  as  a  Distress  for  Rent.  That  is  done, 
by  showing  generally  that  the  Plaintiff  was  Defendant's 
Tenant  at  a  certain  Rent,  and  that  it  being  unpaid,  he,  or 
a  Person  authorised  by  him,  entered  and  seized  the  Goods ; 
that  he  gave  the  notice  of  Distress  required  by  the  Sta- 
tute ;  had  the  goods  regularly  appraised  and  sold,  as  the 
case  may  be,  pursuing  the  directions  of  the  Statute  more 
particularly  stated  below. 

2.  The  Plaintiff's  case  usually  turns  upon  some  irre- 
gularity in  the  Distress,  which,  if  he  succeeds  in  estab- 
lishing, he  is  entitled  to  a  verdict.  He  usually  gives  a 
general  Evidence  only,  that  of  a  taking  of  his  Goods  and 
selling  them,  leaving  the  Defendant  to  justify  the  regulari- 
ty of  his  Proceedings  under  the  Distress ;  in  that  case,  he 
must  be  prepared,  first,  to  show  the  Tenancy  as  above 
stated.  The  cause  of  taking  is  usually  proved  by  the 
Broker  by  whom  the  Distress  was  made,  if  not  a  Defend- 
ant :  if  he  is,  the  Defendant  must  call  some  other  witness. 

He  must  produce  and  show  a  copy  of  the  notice  of 
Distress,  and  prove  it  to  have  been  served  on  the  Plaintiff, 

(*)  1  Esp.N.  P.  C.257. 


CHAT.  VIII.]  the  Action  of  Trespass.  185 

or  left  at  his  house,  and  signed  by  the  Defendant,  whose 
hand  should  be  proved  :  this  specifies  the  taking,  and  cause 
of  taking,  and  that  if  the  Goods  were  not  replevied  within  five 
days  they  would  be  sold,  concluding  with  an  Inventory  of  the 
things  taken  ;  the  Plaintiff  should  have  notice  to  produce 
the  original  left  with  him ;  the  Defendant  should  next  be 
prepared  to  show  the  regularity  of  his  Proceedings  as 
directed  by  Statute,(/)  viz.  that  the  Goods  taken  were  ap- 
praised at  the  five  days'  end  by  two  sworn  Appraisers, 
sworn  before  the  Sheriff  or  Constable  ;  that  the  Goods 
were  sold  for  the  best  price  which  could  be  got  after  such 
appraisement  made ;  and  if  there  was  an  overplus,  that 
it  was  left  with  the  Sheriff  or  Constable. 

But  the  Plaintiff  may  go  into  his  case  at  once ;  and 
after  producing  the  notice  of  Distress,  and  proving  the 
Defendant's  hand  to  it,  he  may  then  show,  by  a  witness, 
the  irregularity  of  the  Proceedings  ;  as,  for  example,  that 
they  were  sold  before  the  end  of  the  five  days,  or  that  the 
Appraisers  were  not  sworn. 

3.  Where  Goods  have  been  clandestinely  removed  to 
avoid  a  Distress,  and  the  Landlord  seizes  them  within  the 
thirty  days,  Actions  of  Trespass  are  often  the  consequence. 
In  this  case,  the  Landlord,  (who  is  the  Defendant,)  is 
bound  to  prove,  after  the  Defendant  has  given  Evidence 
of  the  taking  of  the  Goods  ;  that  the  Plaintiff  was  his  Te- 
nant ;  that  the  Goods  in  question  which  had  been  on  the 
Premises  would,  had  they  remained,  have  been  liable  to 
be  distrained  ;  and  they  were  clandestinely  carried  off  the 
Premises,  of  which,  proof  that  the  removal  took  place  at 

(0  Stat.  2  W.  Sc  M.  Sess.  1  ch.  5! 
A  a 


186  Of  the  Evidence  in  [CHAP. -VIII. 

night,  or  very  early  in  the  morning,  is  the  best.'  The 
presumption  is  then  raised,  on  which  the  Jury  are  to 
decide,  whether  they  were  fraudulenly  taken  away  to  avoid 
the  Distress  or  not ;  and  as  the  Statute  gives  the  Land- 
lord a  right  to  follow  the  Goods  for  thirty  days  only,  he 
should  be  prepared  with  proof  of  the  actual  day  on  which 
he  seized  them.  The  Defendant  should  be  well  prepared 
with  proof  by  witnesses,  as  to  the  time  and  manner  of  the 
removal,  and  that  it  was  suspicious ;  as,  if  bond  Jide,  or 
with"  Defendant's  knowledge,  the  Action  will  lie. 

4.  If  the  Tenant  brings  an  Action  of  Trespass  for 
taking  his  Goods,  which  the  law  considers  as  exempt 
from  Distress  under  particular  circumstances,  such  as 
Wearing  Apparel,  Beasts  of  the  Plough,  or  the  like  ;  the 
Defendant,  the  Landlord,  must  be  prepared  with  Evi- 
dence to  show  That  there  was  nothing  else  on  which  he 
could  make  a  sufficient  Distress,  and  that  will  justify  the 
taking :  but  that  is  an  Action  of  Trespass  on  the  case. 

2-  Ojf  Actions  of  Trespass  for  injuries  to  a  Fishery. 

Where  any  Person  is  entitled  to  a  free  or  several 
Fishery,  he  may  maintain  this  Action  for  entering  it  and 
taking  his  Fish.(m)  The  Plaintiff's  title  in  both  cases 
is  claimed  by  Grant  from  the  Crown,  or  by  Prescription, 
which  presupposes  a  Grant.  If  the  Plaintiff  is  in  posses- 
sion by  Grant,  he  must  produce  it ;  if  not,  he  must  call 
ancient  witnesses  to  prove,  that  his  Predecessors  in  the 
Estate  always  had  and  enjoyed  the  right  as  claimed. 

(m)  I  Esp.  Dig.  N.-P.  401. 


CHAP.  VIII.]          the  Action  of  Trespass.  187 

3.  Of  settling  the  Evidence  in  Actions  of  Trespass  arising 
from  the  pur  suit  of  Game. 

Actions  of  Trespass,  arising  from  the  pursuit  of,  or  for 
the  protection  of  Game,  are  very  frequent.(n) 

If  an  Action  is  brought  by  the  Owner,  or  Tenant,  of  the 
soil,  against  a  Person  for  riding  or  going  over  it,  or  dig- 
ging and  breaking  it,  the  Defendant  may  justify  the  doing 
so. — 1.  By  giving  in  Evidence  that  he  was  in  pursuit  of 
ravenous  beasts,  as  Foxes,  Badgers,  &c.  :(o)  but  that  will 
not  justify  him   in  breaking  the  ground;  in  doing  unne- 
cessary injury  to  the  fences  or  ground  ;  or  in  following 
animals  not  of  that  description.     This  justification,  there- 
fore, may  be  so  answered  by  Evidence  on  the  part  of  the 
Plaintiff,  which  should  show  what  Game  the  Defendant 
was  in  pursuit  of,  and  that  it  was  not  of  beasts   of  that 
description ;  and  show  the  breaking  of  the  ground,  by 
witnesses  who  saw  the  Game  pursued,  or  the  digging  of 
the  earth  ;  which  must  be  proved  to  be   the  Plaintiff 's 
soil,  and  then  in  his  possession. 

But  it  is  no  justification  to  a  Party  coming  on  the  ground 
of  another,  that  he  is  Lord  of  the  Manor,  or  qualified  to 
kill  Game  ;  that  only  exempts  him  from  the  penalties 
under  the  Game  laws. 

If  an   Action  is  brought   for  entering-  the  Plaintiff's 

o  *..» 

house  to  search  for  snares,  or  engines  for  destroying  Game, 
and   taking  Plaintiff's  guns  or  nets,(/?)  the  Defendant 

(n)  1  Esp.  Dig.  N.  P.  403.  (o)  Cro.  Jac,  32 1 . 

(/i)  I  Esp.  Dig.  N.  P.  40 3, 


188  Of  the  Evidence  in  [CHAP.  VIII. 

may  justify  under  the  Warrant  of  a  Justice  of  Peace, 
granted  to  him  for  that  purpose,  under  Statute  22 
and  23  Car.  2.  c.  26.  To  make  that  a  good  Jus- 
tification, the  Defendant  must  produce  in  Evidence 
the  Proceedings  before  the  Justice;  that  is,  prove  the 
Information,  and  the  Justice's  Hand  and  Seal  to  the 
Warrant ;  and  if  any  guns,  nets,  or  snares,  were  seized ; 
that  they  were  found  in  Defendant's  possession. 

If  a  Party  sues  or  justifies  as  a  Gamekeeper  to  the  Lord 
of  a  Manor,  be  must  produce  and  prove  his  Deputation 
from  the  Lord,  and  prove  that  he  was  sporting  within  his 
own  Manor. 

4.    Of  settling  the  Evidence  in   Trespass   against    the 
Sheriff  or  his  Officers. 

Under  this  head  it  must  be  attended  to  in  settling  the 
Evidence : — 1.  That  in  all  cases  of  Trespass  de  bonis 
asportatis,  under  an  Execution,  the  Evidence  must  be 
brought  home  to  the  Sheriff  through  the  medium  of  the 
Warrant  to  the  Sheriff's  Officer  ;  nor  will  it  be  sufficient 
to  show,  even  by  the  Evidence  of  the  under- Sheriff,  that 
the  Person  who  seized  the  Goods  was  in  fact  an  Officer, 
and  the  Warrant  directed  to  him.(^) — 2.  That  if  the 
Plaintiff  in  Trespass  is  the  Defendant  in  the  original 
Action  whose  Goods  were  seized,  it  is  sufficient  for  the 
Sheriff  to  show  his  Warrant :  but  if  the  Action  is  by  a 
Stranger  whose  Goods  have  been  taken,  the  Sheriff  must 
show  an  Office  copy  of  the  Judgment  in  the  Cause  he 
levied.(r) 

(9)  7  Term  Rep.  113.  (r}5  Burr.  2631. 


CHAP.  VIII.]  the  Action  of  Trespass  189 

The  Evidence,  as  to  proceeding  against  the  Sheriff,  has 
been  already  treated  of  in  other  Actions,  ante :  but  in  this 
Action  of  Trespass  vi  et  armis,  the  questions  which  usu- 
ally occur  are — as  to  the  property  of  Goods  taken  in  exe- 
cution: in  these  Actions  the  Sheriff  is  only  a  nominal  De- 
fendant. It  is  sufficient  here  to  observe,  that  the  only 
point  to  be  attended  to  is,  in  whom  is  the  actual  property 
In  the  Goods :  apparent  property,  or  acts  of  Ownership, 
exercised  over  Goods  by  the  Defendant,  will  not  entitle 
the  Sheriff  to  take  them  in  execution,  but  that  proof  of 
property  lies  on  the  Plaintiff.  But  vide  post,  ch.  of  Tro- 
ver in  cases  of  Bankruptcy. 

5.   Of  the  Evidence  in  Actions  of  Trespass  against  Offi- 
cers of  the  Excise  or  Customs.(s) 

1.  As  the  Action  must  be  brought  against  these  Offi- 
cers, for  any  thing  done  in   the  execution  of  their  duty 
within  three  monms,(£)  the  Plaintiff's  Attorney  should 
always  have  the   Writ  in  Court,  and  be  prepared  with 
proof  of  the  time  of  the  actual  service  of  it,  to  ascertain  if 
the  three  months  have  run  since  the  offence  commit- 
ted^*/) 

2.  The  venue  must  be  laid  in  the  County  where  the 
offence  was  committed. (x)     In  making  up  the  Evidence 
therefore,  it  is  necessary  to  ascertain,  with  precision,  the 
place  where  the  Officer  seized  the  Goods,  and  to  see  that 
it  is  in  the  County  laid  in  the  Declaration. 

(*)  I  Esp.  Dig.  N.  P.  408.  (0  Stat.  17.  Geo.  II.. 

(u)  2  H.  Black.  14.  (x)  Same  Stat. 


1 90  Of  the  Evidence  in          [CHAP.  VIIL 

3.  As  a  notice  of  Action  is  required  to  be  given  by  the 
Statutes,  referred  to  below,(^)  which  notice  is  to  express 
clearly  the  cause  of  Action,  and  the  name  and  place  of 
abode  of  the  Plaintiff  and  of  his  Attorney,  and  to  be  serv- 
ed one  month  before  Action  brought,  the  Plaintiff  must 
have  at  the  Trial  of  the  Cause,  the  witness  who  served  the 
notice,  and  compared  it  with  the  copy  produced,  and  can 
swear  to  the  copy  served,  which  the  Defendant  should 
have  notice  to  produce,  and  then  have  the  Writ  in  Court 
if  called  for. 

4.  The  necessity  of  collecting  the  Revenue,  making  it 
necessary  that  Officers  should  have  the  power  of  entering 
Houses  and  seizing  Goods,  which  are  presumed  to  be 
contraband  ;  the  time,  place,  and  manner  of  seizure,  must 
be  attended  to,  and  the  Plaintiff  must  be  prepared  to  rebut 
the   Evidence  which  the  Defendant  may  bring  forward, 
which  is  as  follows  : — 

1.  The  Defendant  may  show,  that  he  entered  under  a 
Writ  of  Assistance  out  of  the  Court  of  Exchequer,  which 
must  be  produced  and  proved  :  he  must  then  prove  that 
he  entered  the  House  in  the  day  time,  and  was  accom- 
panied in  the  search  and  seizure  by  the  Constable  of  the 
place  where  the  Plaintiff's  House  is  situated,  and  where 
he  seized  the  Goods  in  question. 

This  Evidence  would  be  conclusive  :  but  the  Plaintiff 
may  defeat  it,  by  showing  that  the  Officer  was  alone,  and 

(y)  Stat.  23  Geo.  III.  c.  70,  s.  30.  and  24  Geo.  III.  Sess.  2.  c, 
4,7.  s.  35. 


CHAP.  VIII.]  the  Action  of  Trespass.  191 

unattended  by  any  Constable  \(z]  or  if  he  was  attended  by 
a  Constable,  that  he  was  not  the  Constable  of  the  place 
where  the  seizure  was  made  ;(#)  if  no  Goods  are  found, 
the  showing  that  fact  in  Evidence,  has  been  held  to  en- 
title the  Plaintiff  to  recover  in  Trespass  for  the  breaking 
and  entering  his  House ;  but  that  has  been  overruled, 
where  the  Defendant  has  entered  under  a  Warrant  grant- 
ed by  two  Commissioners  :  the  Officer  should,  therefore, 
on  those  occasions,  give  in  Evidence  the  Warrant,  and 
prove  the  Commissioner's  hand-writing  to  it.(6) 

2.  If  the  entering  and  seizure  is  made  at  night,  the 
Officer  must  also  be  accompanied  by  the   Constable  or 
Officer  of  the  place,  or  he  will  be  a  Trespasser.     He 
must,  therefore,  prove  that  fact.(c) 

3.  If  the  Goods  taken  have  been  condemned  in  the 
Exchequer,(f/),  the  Officer  should  give  in  Evidence  an 
examined  copy  of  the  Judgment  of  Condemnation  there, 
and  that  is  conclusive  Evidence  for  him.     That  copy 
must  be  proved  by  a  witness  who  compared  it  with  the 
original. 

G 

But  a  condemnation  of  the  Goods  by  an  inferior  juris- 
diction, as  by  the  Officers  of  the  Excise  or  Customs,  is 
not  sufficient. (e) 

4.  If  the  Officer  seized  any  Goods  liable  to  Duty, 

(z)3  Wils.  61. 

(a)  2  Wils.  405.  0)  1  Term  Rep.  535. 

(c)  St.  8  Anne,  c.  9.  10  Anne,  c.  19.  s.  12. 

(rf)  2  W.  Black.  Rep.  977.        (e)  2  W.  Black,  Rep.  1 174. 


192  Of  the  Evidence  in      .         [CiiAp.  VIIL 

which  in  fact  are  not  forfeitable,(  f)  he  must  show  that 
they  were  on  board  a  Boat  and  no  Officer  with  them,  or 
coming  by  the  waterside,  on  circumstances  of  credible 
information.  This  is  matter  of  vwdvoce  proof  by  wit- 
nesses who  saw  the  seizure  made. 

5.  And  if  an  Officer  justifies  a  search  under  a  Justice's 
Warrant,(g-)  though  it  recites  an  Information  made  before 
the  Justice,  the  Warrant  is  sufficient  Evidence  without 
producing  the  Information,  which  Warrant  he  must  regu- 
larly prove. 

For  Evidence  under  a  Justification  by  an  Officer, 
see  ante,  False  Imprisonment,  and  see  1  Esp.  Dig.  N.  P. 
422. 

The  general  Pleas  in  this  Action  are — 

• 

1.  A  Release,  which  is  a  good  Plea  in  this  Action  ;(/z)  and 
if  there  are  more  Defendants  than  one,  a  Release  to  one 
will  be  good  as  to  all.     The   Evidence   of  this   is     by 
Deed,  and  the  execution  must  be  proved  by  the  subscrib- 
ing witness, 

. 

2.  A  recovery  in  another  Action  for  the  same  Trespass, 
which  is  also  a  good  bar  ;(z)  to  support  the  Plea  to  that 
effect,  the  Defendant  must  give  in  Evidence,  by  the  ex- 
amined  copy,   the   Judgment    obtained  in   the    former 
Suit,    and  prove    that  the    cause  of    Action  was    the 
same.(A-) 

(/)  Stat.  6  Geo.  I.e.  21. 

CsO  MSS.  1  Esp.  Dig.N.  P.  428.        (A)  Hob.  66. 

(i)  Cro.  EHz.  30.  (*)  3  East.  346. 


CHAP,  VIII.]         the  Action  of  Trespass .  193 

3.  By  Stat.  21.  Jac.  I.  c.  16.     Disclaimer  and  tender 
of  amends  before  Action  brought,  is  a  good  Plea.    To  such 
a  Plea,  the  Defendant  must  bring  Evidence  to  prove,  that 
he  committed  the  Trespass   by  mistake,  and,  of  course, 
that  it  was  involuntary :  he  must  also  prove  the  Tender 
of  the  precise  sum  pleaded,  in  the  usual  way,  and  then 
call  witnesses  to  prove  that  the  sum  he  tendered  was  a 
full  compensation  for  the  injury  he  did. 

4.  The  General  Issue  in  this  Action  is,  Not  Guilty;' and 
under   it   the  Defendant  may  give  title  in  Evidence ;(/) 
that  is,  he  may  show,  that  the  land  is  his,  not  the  Plain- 
tiff's :  as  if  a  Tenant  for  life  died  who  had  let  the  land  to 
Plaintiff,  and  his  successor  let  it  to  the  Defendant  who 
entered  on  it,(tfz)  he  may  show  his  right  to  do  so,  under 
the  Plea  of  the  General  Issue.     So  he  may  show,  that  he 
held  under  a  good  lease  which  is  unexpired ;  in  which 
case  he  must  produce  and  prove  the  Lease  by  the  sub- 
scribing witness. 

But  the  Defendant  cannot,  under  that  Issue,  give 
in  Evidence  matters  of  excuse  :  as  accident,  inevita- 
ble necessity,  negligence  of  the  Plaintiff  himself,  or  the 
like.(rc) 

In  this  Action,  the  boundaries  of  property  separated  by 
a  Ditch  often  comes  in  question.  In  that  case,  the  rule 
of  la"w,  as  laid  down  by  Judge  Lawrence  in  the  case 
of  Vowles  v.  Miller,  (o)  is,  that  the  edge  of  the 

(0  7  Term  Rep.  354.  (m)  8  Term  Rep.  403. 

(?/)  Esp.  Dig.  N.P.  429.  (o)  3  Taunt.  137. 

Bb 


194  Of  the  Evidence  in  [CHAP.  VIII. 

Ditch  is  the  boundary  of  his  land  who  owns  the  back 
of  it. 

In  Trespass  de  bonis  asportatis,  as  the  Plaintiff  is  con- 
fined in  his  Evidence  to  the  particular  Goods  men- 
tioned in  the  Declaration,^)  in  settling  the  Evidence, 
therefore,  for  the  Plaintiff,  these  only  are  to  be  attend- 
ed to. 

/    Bull.  N.  P.  84. 


the  Action  of  Trespass.  195 


CHAPTER    IX. 


OF  SETTLING  THE  EVIDENCE  IN  THE  ACTION   OF   EJECT- 
MENT. 

•  „ 

JJLN  settling  the  Evidence  in  this  Action  particular  accu- 
racy is  necessary,  as  the  Plaintiff  must  recover  by  the 
strength  of  his  own  title.  It  must  be  taken  to  be  a  gene- 
ral rule,  that,  in  every  case,  the  Plaintiff  must  be  prepared 
with  Evidence  to  prove  that  the  Land,  or  Tenements, 
which  he  seeks  to  recover  by  Ejectment,  have  not  been 
held  adversely  to  him  for  twenty  years ;  or  rather  he  must 
prove,  that  he,  or  those  under  whom  he  claims,  have 
been  in  possession  within  that  period  ;(a)  (this  arises 
under  the  Statute  21  Jac.  I.  c.  16.)  unless  he  can  bring 
himself  within  some  of  the  legal  exceptions  given  by  that 
Statute,  as  Infancy ;  in  which  case  he  must  prove  the 
time  of  his  birth  ;  that  he  was  non  compos,  imprisoned,  or 
beyond  sea :  each  of  which  facts  must  be  distinctly  proved 
before  he  can  go  into  his  case,  if  the  twenty  years  have 
run ;  and  in  the  case  of  a  woman  being  Plaintiff,  she 
must  show  that  she  was  Covert  during  the  twenty  years, 
by  proof  of  an  actual  marriage  as  before  stated,  ante,  113. 
All  this  is  matter  of  parol  Evidence,  as  the  Plaintiff  may 

(c)  i  Esp.  Dig.  N.  P.  440. 


Of  Evidence  in  [Cn  A  p.  IX. 

show  his  possession,  either  by  the  actual  occupation  of 
the  Premises  by  his  Ancestor,  under  whom  he  claims,  or 
by  himself,  or  if  by  a  Tenant,  by  proof  of  Rent  having 
been  paid  to  him,  or  to  his  Ancestor.  If  he  is  unable  to 
give  positive  Evidence  to  this  effect,  he  must  abandon  his 
Action. 

The  next  general  rule  to  be  observed  is,  to  see  that  the 
Plaintiff  has  laid  his  demise  in  the  Ejectment,  after  his 
own  title  has  accrued ;  for  this  purpose,  in  every  case, 
the  day  of  the  demise,  laid  in  the  Declaration  in  Eject- 
ment, must  be  first  and  carefully  lookejl  to,  as  well  as  the 
time  when  the  Lessor  of  the  Plaintiff 's  title  or  right  of 
entry  accrued,  for  the  demise  must  be  subsequent  to  it. 
As  e .  g.  if  a  Tenant  was  bound  to  quit  at  Michaelmas, 
and  not  having  done  so,  his  Lessor  brings  an  Ejectment 
to  recover  the  possession ;  as  the  Lessor  had  no  tide  to 
the  possession  till  after  the  29th  of  September,  he  must 
lay  his  demise  subsequent  to  that  day  ;  that  is,  as  his  title 
commences  on  the  30th  of  September,  from  which  time 
only  he  has  a  right  to  the  possession  of  the  lands,  the 
demise  is  usually  laid  on  that  day,  or  on  the  1st  of  Oc- 
tober, to  hold  from  the  30th  of  September. 

1.  The  principal  cases  in  Ejectment  are  between  Land- 
lord and  Tenant. — 2.  By  a  Mortgagee. — 3.  To  obtain 
possession  under  an  Elegit. — 4.  For  Copyhold  Premises. 
— 5.  By  a  Devisee. — 6.  By  the  Heir  at  Law.  These 
will  be  distinctly  considered. 


CHAP.  IX.]         the  Action  of  Ejectment.  197 

1.  Of  the  Evidence  in  cases  between  Landlord  and  Te- 
nant. 

1.  If  the  Ejectment  is  brought  by  the  Landlord,  on  the 
ground  that  the  Tenant  held  over  after  the  expiration  of 
the  Lease  under  which  he  held,  the  Plaintiff  must  pro- 
duce and  prove  the  Lease,  and  the  execution  of  it  by  the 
Tenant ;  and  then  the  Term  originally  granted  will  ap- 
pear by  references  to  it,  and,  of  course,  its  expiration  by 
the  effluxion  of  time  :  by  that  Evidence,  the   Plaintiff 
shows  his  right  to  the  possession,  and  that  the  Defendant 
was  wrongfully  in  possession. 

2.  If  the  Ejectment  is  founded  on  a  notice  to  quit,  the 
Plaintiff  must  prove  that  Defendant  was  his  Tenant ;  that 
he  paid  him  Rent ;  and  give  some  Evidence,   that  his 
holding  commenced  at  some  time,  or  feast,  prior  to  the  day 
laid  in  the  Declaration  :    this  may  be  done  by  giving  no- 
tice to  produce  receipts,  and  proving  either  by  them,  or 
other  Evidence,  the  payment  of  Kent  by  Defendant,  for  Rent 
due  at  some  quarter  or  half  year.  He  must  then  prove  a  re- 
gular notice  to  quit,  corresponding  with  the  Defendant's 
holding ;  that  is,  if  the  Defendant's  holding  ended  at  Mid- 
summer, the  notice  must  be  to  quit  at  Midsummer.  He  must 
prove  that  this  notice  was  to  quit  at  the  regular  time,  and 
served  on  the  Defendant  at  least  six  months  previous  to  the 
expiration  of  his  holding.     This  notice  is  proved,   by 
giving  the  Defendant  notice  to  produce  that  served  on 
him ;  and  the  Plaintiff  must,  in  case  the  service  is  not 
admitted,  call  the  Person  as  a  witness  who  served  the 
notice,  who  should  produce  a  copy  of  that  served  on  the 
Defendant,  which  he  must  swear  was  a  copy,  and  prove 
the  time  of  actual  service  on  the  Defendant,  or  the  leaving 


198  Of  the  Evidence  m  [CHAP.  IX- 

it  at  his  dwelling  house,  so  that  it  may  appear  to  be 
more  than  six  months  previous  to  the  end  of  Defendant's 
holding. 

As  questions  are  often  raised  on  the  validity  of  this 
notice,  it  must  be  observed,  that  it  is  essential  to  its  va- 
lidity.^) 

1.  That  it  be  signed  by  the  Party  entitled  to  the  pos- 
session, and  by  all  who  are  so  entitled  :(c)  whose  hand- 
writing to  it  should  be  proved. 

But  a  notice  to  quit,  given  by  a  Receiver  of  an  Estate, 
under  the  Court  of  Chancery,  would  be  good  ;  but  he 
should  show  his  appointment.(c?)  And  the  witness,  who 
served  the  notice,  or  some  other,  should  be  prepared  with 
proof  of  his  signing  or  hand- writing. 

2.  It  must  be  served  six  months  previous  to  the  time 
required  by  the  Lessor  of  the  Plaintiff  for  Defendant  to 
quit,  and  must  end  with  the  year  of  Defendant's  holding. 
But  if  served  on  the  day  after  any  Quarter  day ;  as,  for 
example,  the  30th  of  September,  to  quit  on  the  Lady-day 
following,  it  will  be  good.(e) 

If  the  notice  to  quit  is  witnessed  by  any  Person,  he 
must  be  called ;  and  no  parol  Evidence  will  be  admitted 
to  show,  that  the  Tenant  read  or  understood  the  no- 
tice.(/) 

(£)      Esp.  Dig.  N.  P.  467.  (c)  5  East.  498. 

(cf)  12  East.  57.  (e)  Esp.  Dig.  N.  P.  467. 

(/)  2  Mau.  &  Selw.  62. 


CHAP.  IX.]         the  Action  of  Ejectment.  199 

3.  It  must  express  the  time  when  the  Defendant  is  to 
quit,  as  Michaelmas-day,  Lady- day,  or  the  like. 

But  if  the  notice  is  for  Michaelmas  or  Lady-day,  it 
means  the  29th  of  September  or  25th  of  March,  being 
the  new  Style  \(g)  and  parol  Evidence  is  inadmissible  to 
show,  that  where  the  notice  said  Michaelmas,  it  meant 
old  Michaelmas- day ;  and  it  must  be  to  quit  all  the  de- 
mised Premises,  and  not  any  part  of  them,  (h) 

4.  It  must  be  served  on  the  Tenant  of  the  demised 
Premises,  or  at  his  house,  which  will  be   sufficient  :(z) 
proof  of  which  must  be  made  by  the  Person  who  served 
it ;  and  if  there  be  Joint-tenants  of  the  Premises,  service 
on  one  on  the  Premises  will  be  sufficient,  (k) 

When  there  are  under  Tenants,  the  Landlord  is  not 
obliged  to  serve  any  notice  to  quit  on  them,  it  is  sufficient 
to  give  his  own  Tenant  notice  to  quit ;  and  when  he  ob- 
tains Judgment  against  him,  the  Sheriff  will  turn  out  all 
the  under  Tenants.(/) 

3.  The  third  case  of  Ejectment,  between  Landlord 
and  Tenant,  is,  where  it  is  for  non-payment  of  Rent,  or 
breach  of  Covenant. 

This,  for  non-payment  of  Rent,  is  by  Statute  4  Geo.  II. 

(ar)  1 »  East.  312.  (A)  14  East.  247. 

(*)  4  Term  Rep.  464.  (k)  7  East.  551. 

(/)  Per  Mansfield,  C.  J.  2  Bos.  &  Pul.  N.  R.  330,  et  Vide  14 
East  234, 


200  Of  the  Evidence  in  [CHAP.  IX. 

c.  4.  when  by  the  terms  of  the  Tenant's  holding,  the 
Landlord  has  reserved  to  himself  a  right  of  entry  in  case 
of  half  a-year's  Rent  being  in  arrear ;  for  this  purpose, 
the  Lessor  of  the  Plaintiff  must  produce  and  prove,  by 
the  subscribing  witness,  the  lease  under  which  the  De- 
fendant held.  That  being  referred  to,  the  reservation  of 
the  Rent,  and  the  right  of  entry  claimed  by  the  Landlord, 
will  appear ;  the  Affidavit  of  the  half  year's  arrear  of  Rent 
is  made  before  the  Ejectment  is  brought ;  but  proof  of  it 
may  be  given  at  the  Trial. ,  But  the  Plaintiff  is  required 
to  give  further  Evidence ;  that  is,  he  must  either  prove 
by  a  witness,  that  he  demanded  the  Rent  upon  the  Land, 
or  Premises,  at  a  convenient  time  before  sunset  of  the  day 
the  Rent  became  due,  and  that  it  was  not  paid  ;(m)  or  he 
must  prove  in  the  same  way,  that  there  were  no  goods,  or 
property,  on  the  Premises,  sufficient  to  answer  die  Rent 
in  arrear. 

Without.this  Evidence,  in  an  Ejectment  brought  for 
non-payment  of  Rent,  the  Plaintiff  will  be  non-suited. 

If  the  Ejectment  is  brought  on  the  Covenant  for  re-en- 
try for  breach  of  any  other  Covenant  in  the  Lease,  the 
Plaintiff  must  first  prove,  as  before,  the  execution  of  the 
Lease  by  the  subscribing  witness ;  then,  by  reference  to 
the  Lease,  the  Covenant  will  appear  for  the  breach  of 
which  the  Plaintiff  brings  his  Ejectment. 

The  Plaintiff  must  then  give  Evidence  of  the  breach  of 
that  Covenant ;  and  then  his  right  of  entry  appears  by  the 
Lease,  and,  of  course,  his  right  to  recover.  Thus  if  the 

COT)  7  Terra  Rep.  nr. 


CHAP.  IX.]  the  Action  of  Ejectment.  201 

breach  of  Covenant  complained  of  is,  that  the  Defendant 
ploughed  up  old  meadow,  he  must  show  that  the  meadow 
broke  up  was  ancient  meadow,  and  that  the  Defendant 
ploughed  it  up,  or  broke  it  up. 

In  cases  of  Ejectment  for  breach  of  Covenant,  a  Judge 
will  make  an  order  for  a  Particular  of  the  breaches  the 
Plaintiff  goes  for ;  and,  at  the  Trial,  the  Plaintiff  will  not 
be  allowed  to  go  into  Evidence  of  any  other.  This 
order  should  be  obtained  in  every  case,  as  the  Defendant 
will  know  how  to  regulate  his  Evidence,  and  confine  it  to 
such  points  only  as — 

If  the  Ejectment  is  for  non-payment  of  Rent,  proof  of 
the  payment  lies  on  the  Defendant ;  and  though  the  right 
of  entry  is  in  the  words  of  the  Lease  given  for  non-pay- 
ment of  Rent,  "  being  lawfully  demanded"(n)  three 
Judges,  against  one,  decided,  that  the  Lessor  was  not  call- 
ed upon  to  prove  a  previous  actual  demand  of  it  before  he 
brought  his  Ejectment ;  that  Evidence  is,  therefore,  un- 
necessary. 

These  are  cases  where  the  relation  of  Landlord  and 
Tenant  is  clear,  and  the  Action  of  Ejectment  comes  on 
to  Trial,  by  reason  of  the  Defendants  wrongfully  keeping 
possession  after  the  determination  of  their  Tenancy.  But 
there  are  cases  where  the  Landlord  may  maintain  an 
Ejectment  without  any  notice  to  quit. 

1.  If  the  Defendant  disclaims  to  hold  of  the  Lessor  of 
the  Plaintiff,  and  sets  up  a  title  in  himself  or  as  holding 
under  some  other  Person.  In  that  case,  no  notice  to  quit 

(«)  Doe  v.  Alexander.  2  Mau.  Sc  Selw.  525. 
C  c 


202  Of  the  Evidence  in  [CHAP.  IX. 

is  required ;  but  the  Lessor  of  the  Plaintiff  must  go  into 
his  title,  and  prove  it  regularly ;  for  the  Defendant  being 
in  possession,  the  Plaintiff  must  recover  by  proving  him- 
self  entitled. 

2.  If  the  Tenant  has  held  under  a  Lease  made  by  a 
Tenant  for  life,  who  is  dead,  or  who  had  power  to  make 
Leases  which  have  not  been  well  executed,(o)  the  Person 
entitled  in  remainder  or  reversion  may  maintain  an  Eject- 
ment against  the  Tenant  in  possession.     But  in  such  case 
he  must  prove  his  title  to  the  Premises  by  regular  Evi- 
dence ;  in  which  case,  if  the  Tenant  sets  up  any  Lease,  it 
is  answered  by  showing,  that  the  Lessor  who  made  that 
Lease  was  only  Tenant  for  life,  and  that  he  -was  dead  ; 
ha   he  was  only  Tenant   for  life,  will  appear  from  the 
Title  Deeds  which  the  Plaintiff  must  prove  in  support  of 
his  title ;  or  if  he  had  power  to  make  Leases,  under  which 
the  Lease  relied  on  by  the  Tenant  was  made,  the  Plain- 
tiff may  show  that  he  did  not  pursue  the  power,  and  in 
what  respect,  and  that,  of  course,  his  Lease  was  void. 

This  is  the  case,  where  he  in  reversion  or  remainder 
has  never  accepted  Rent  from  the  Tenant;  for  if  he 
has,(/>)  though  it  does  not  set  up  the  Lease,  it  makes  the 
Tenant  a  yearly  Tenant,  and  as  such  entitled  to  a  notice 
to  quit ;  which,  in  such  case,  must  be  proved  as  before 
stated,  or  the  Plaintiff  cannot  recover. 

3.  Where  the  Lease  has  expired  by  effluxion  of  time, 
and  the  Tenant  continues  in  possession,  no  notice  to  quit 
is  required,  but  the  Lessor  may  immediately  proceed  by 

(o)  Esp.  Dig.  7  4.  (A)  7  Term  Rep.  83, 


CHAP.  IX.]  the  Action  of  Ejectment.  203 

Ejectment :  but  if  he  receives  Kent  for  any  time  after  the 
expiration  of  the  Lease,  the  Tenant  then  becomes  a  yearly 
Tenant,  and  entitled  to  notice  to  quit. 

4.  Where  a  Mortgagor  has  made  a  Lease  or  Demise 
subsequent  to  the  Mortgage,  the   Mortgagee  may  bring 
an  Ejectment  without  giving  any  notice,  for  the  demise  is 
absolutely  void.(<7) 

5.  Where  an  entry  is  given  for  breach  of  Covenant,  no 
notice  to  quit  is  required. 

In  Ejectment,  between  Landlord  and  Tenant,  it  may 
be  taken  as  a  general  rule,  that  the  Tenant  cannot  dispute 
his  Landlord's  title  after  he  has  paid  him  Rent,  but  he 
may  show  his  Landlord's  title  expired  ;  as  if  he  was  Te- 
nant per  auter  vie,  he  may  show  that  Person  dead. 

Of  the  Evidence  by  the  Defendant  in  Ejectment. 

It  is  sufficient  for  a  Defendant  to  prove  a  title  out  of  the 
Plaintiff,  though  he  proves  none  in  himself,  in  all  cases  ; 
and  first,  as  between  Landlord  and  Tenant,  or  other  Per- 
sons claiming  the  Land  as  Owner,  (r) 

1.  The  Defendant,  on  proof  of  the  notice  to  quit  being 
made  by  the  Plaintiff,  and  if  specifying  a  particular  day 
on  which  the  Defendant  was  to  quit,  may  give  in  Evidence 
that  his  Tenancy  commenced,  not  on  the  day  mentioned  in 
the  notice,  but  on  another  and  different  day  ;  and  this  will 
nonsuit  the  Plaintiff.  This  is  done  either  by  showing  the 

(?)  Keech  v.  Hall,  Dougl.  21.        (r)  1  Esp.  Dig.  462.  and  N.  P. 


204  Of  the  Evidence  in  [CHAP.  IX. 

actual  time  when  Defendant  became  Tenant  by  a  witness, 
or  by  some  agreement  in  writing,  an  expired  Lease  or 
otherwise. 

2.  He  may  show  the  true  tinw  of  serving  the  notice  to 
quit,  and  that  it  was  short  of  six  months  ;  or  that  it  never 
came  to  his  hands  :  as  if  Plaintiff  proved  the  service  of 
the  notice  on  some  Person  on  the  Premises,  but  who,  on 
being  called,  proved  that  he  had  never  delivered  it  to  the 
Tenant.(j)     This  must  be  proved  by  parol. 

But  where  it  is  said  that  a  notice  to  quit  is  insufficient 
if  short  of  six  months,  that  is,  the  case  where  the  Tenan- 
cy is  a  yearly  one :  for  if  the  taking  of  the  Premises  was 
by  the  month  or  week,  a  month  or  week's  notice  would  be 
sufficient.  So  if  there  is  an  agreement  that  the  Tenant 
shall  accept  any  shorter  notice,  on  proof  of  the  agreement5 
and  the  corresponding  short  notice,  that  will  be  sufficient. 
And  where  the  Tenant  agrees  to  take  a  shorter  notice 
than  six  months ;  still  that  must  end  with  the  year,  unless 
otherwise  expressed  ;  with  which  the  notice  to  quit  must 
correspond. 

3.  He  may  show  a  waiver  of  it  by  the  Landlord. (t) 

This  may  be  done,  either  by  proving  receipt  of  Rent 
by  the  Landlord  as  Rent,  or  a  Distress  made  by  him  for 
Rent  becoming  due  after  the  notice  to  quit  expired,  or  by 
his  bringing  an  Action  of  Covenant  for  it ;  for  by  receiv- 

(s)  Jones  TJ.  Marsh,  4  Term  Rep.  464. 

\t]  1  Esp.  Dig.  N.  P.  472.  Cowp.  243.  6  Term  Rep.  219. 
JB«ll.  N.  P.  96. 


CHAP.  IX.]  the  Action  of  Ejectment.  205 

ing  the  Rent,  or  making  a  Distress  for  Rent,  so  subse- 
quently due,  the  Landlord  admits  the  Defendant  to  be 
his  Tenant  at  that  time ;  for  did  he  rely  on  the  notice,  the 
Tenant  would  have  been  "a  Trespasser. 

To  give  the  Defendant,  however,  the  effect  of  these 
acts  as  amounting  to  a  waiver — if  it  is  receipt  of  Rent  he 
relies  on,(w)  he  must  show  that  the  Plaintiff  received  the 
money  as  Rent ;  that  will  best  appear  by  the  receipt :  if 
the  Landlord  had  distreined,  the  Defendant  should  show 
the  notice  of  Distress  served  on  him,  which  specifies  for 
what  it  was  made ;  or  if  there  was  a  Replevin,  he  should 
show  by  the  Avowry,  the  Landlord  claimed  by  it  Rent 
subsequent  to  the  notice  :  for  which  purpose  the  proceed- 
ings in  Replevin  or  an  examined  copy  must  be  given  in 
Evidence.  If  it  was  on  the  ground  of  an  Action  of  Cove- 
nanfj  the  Declaration  in  Covenant  should  be  either  produc- 
ed, or  an  examined  copy  of  it. 

But  in  addition  to  this  Evidence,  in  order  to  make  any 
of  these  cases  amount  to  a  waiver  of  the  forfeiture,  the 
Tenant  must  prove  that  at  the  time  the  Landlord  knew  of 
a  forfeiture  being  committed  ;(v)  such  as  if  he  lived  near 
the  demised  Premises,  and  saw  the  Defendant  commit 
the  breach  of  Covenant  on  which  he  goes  ;  as  ploughing 
up  old  meadow,  e.  g.  and  afterwards  accepted  Rent :  that 
would  waive  the  forfeiture.  But  the  Defendant  must  give 
these  facts  in  Evidence  by  a  witness. 

But  it  must  be  observed,  that  where  the  breach  of  CO- 
CM)  1  Esp.  Dig.  N.  P.  478.    Pennant's  Case,  3  Co.  64. 
(v)  Cowp.  803. 


206  Of  the  Evidence  in  [CHAP.  IX. 

venant  is  a  continuing  one,  as  suffering  the  Premises  to  be 
out  of  repair  ;(x)  the  acceptance  of  Rent,  or  distraining, 
is  only  a  waiver  of  the  then  existing  breach  of  Covenant ; 
and  that  if  the  Tenant  continues  to  suffer  the  Premises  to 
continue  unrepaired,  an  Ejectment  may  be  brought  for 
such  continuing  breaches :  these  matters  must  be,  there- 
fore, well  attended  to  in  settling  the  Evidence  on  them. 
It  is,  therefore,  always  prudent  for  the  Plaintiff  to  be  pre- 
pared with  proof  of  an  existing  breach  of  Covenant  as  near 
to  the  time  of  bringing  the  Ejectment  as  possible. 

Of  the  Evidence  on  the  part  of  the  Lessor  of  the  Plaintiff, 
as  Assignee  of  a  Bankrupt,  Mortgagee,  Lord,  or  Copy- 
holder, under  an  Elegit,  by  Devisee,  or  Heir  at  Law. 

1.  If  an  Ejectment  is  brought  by  the  Assignees  of  a 
Bankruptcy]  in  addition  to  the  proof  of  the  Commission, 
and  that  they  are  Assignees  as  before  stated :  they  must 
show  that  the  Deed  of  Assignment  from  the  Commission- 
ers to  them  was  enrolled.  This  will  appear  by  the  in- 
dorsement of  the  proper  Officer  on  the  Deed,  and  is  so 
proved.(r) 

This  is  necessary  to  complete  their  title ;  but  as  the 
Assignment  of  the  Commissioners  only  operates  on  lands 
which  were  the  Bankrupt's  at  the  time  of  the  assignment ; 
the  Defendant  may  show  that  the  lands  for  which  the 
Ejectment  was  brought  came  to  him  afterwards,  and  non- 

(#)  Doe  v.  Bliss,  4  Taunt.  735. 

(y)  1  Esp.  Dig.  N.  P.  439.    Cas.  K.  B.  or  12  Mod.  3. 

(z)Per  Buller  Dougl.  56. 


LW       ^  '•''' 
CH  A  p.  IX.]        the  Action  of  Ejectment.  207 

suit  the  Plaintiff;  as,  in  that  case,  there  should  be  a  new 
Deed  of  assignment  and  enrollment  of  it.(a) 

2.  If  the  Ejectment  is  brought  by  a  Mortgagee. 

This  Ejectment  can  only  be  maintained  against  the 
Mortgagor  himself  who  is  in  possession  of  the  mortgaged 
Premises,  or  against  a  Tenant  who  has  come  into  posses- 
sion of  them  under  him  subsequent  to  the  Mortgage.  In 
that  case  the  Plaintiff  is  only  called  upon  to  prove  the  ex- 
ecution of  the  mortgage  Deed,  and  the  possession  as 
stated ;  then  by  reference  to  the  Deed  when  proved,  it 
will  appear  that  the  time  for  payment  of  the  money  is 
elapsed,  and,  of  course,  the  right  of  entry  is  complete. 

If  the  Defendant  was  a  Tenant  to  the  Mortgagor  prior 
to  the  Mortgage,  he  must  show  that  he  was  so,  either  by 
proving  his  Lease,  or  showing  a  demise  to  him  so  made 
and  still  existing ;  and  that  will  nonsuit  the  Plaintiff. 

3.  If  the  Plaintiff's  Ejectment 'is  to  obtain  possession 
of  Premises  under  an  Elegit,  he  must  give  in  Evidence  an 
examined  copy  of  the  Judgment  Roll  which  he  obtained, 
and  under  which  the  Elegit  issued,  and  which  contains 
the  award  of  the  Elegit,  and  the  Return  of  the  Inquisition ; 
but  he  need  not  produce  a  copy  of  the  Writ  of  the  Inqui- 
sition, and  the  Sheriff 's  return  on  it.(6)     That  Roll  sets 
out  the  Inquisition  held  by  him,  and  the  finding  of  the 
Jury  of  the  Premises  for  which  the  Ejectment  is  brought. 

As  the  Return  to  the  Inquisition  contains  the  finding  of 

(a)  Doe  v.  Mitchell,  2  Mau.  &  Selw.  446. 
(£   2  Mau.  Sc  Selw,  565. 


208  Of  the  Evidence  in  [CHAP.  IX 

the  Jury  of  the  Premises  for -which  the  Ejectment  is 
brought,  it  must  be  attended  to,  that  it  is  accurate  in  des- 
cribing and  finding  the  Premises  by  metes  and  bounds  ; 
or  the  objection  may  be  taken  at  the  Trial,  and  the  Plain- 
tiff cannot  recover. (c] 

4.  If  the  Ejectment  is  for  Copyhokl  lands,  it  may  be  by 
the  Lord  for  a  forfeiture,  or  by  the  Tenant  to  recover  land 
so  seized  by  him,  by  a  person  claiming  as  Heir  ;  or  as 
entitled  by  purchase. 

If  the  Ejectment  is  by  the  Lord  for  a  forfeiture >  he 
must, — 1.  Show  that  the  Defendant  was  a  Copyholder  of 
the  Manor,  of  which  he  is  -the  Lord  :  that  will  appear  by 
his  admission  on  the  Rolls.(f/) — 2.  He  must  prove  a  cus- 
tom of  the  Manor  for  the  Lord  to  seize  for  a  forfeiture  by 
reason  of  the  act  done  by  the  Tenant ;  as  by  cutting 
Timber,  for  example;  and  then  show  that  the  Tenant 
committed  that  act.(^)  The  custom  is  generally  proved 
by  the  Steward,  or  some  ancient  Persons  who  have  long 
known  the  Manor,  and"  that  know  the  custom.  The  act 
of  the  Defendant  is  matter  of  parol  Evidence.  He  should 
also  show,  that  he  was  Lord  when  the  forfeiture  took 
place,  and  that  the  act  was  done  within  twenty  years. 

If  the  Lord  has  seized  the  Land  as  forfeited,  and  the 
Copyholder  who  has  been  evicted,  or  who  claims  to  be 
entitled,  brings  the  Ejectment ;  the  Plaintiff  in  such  case 
must  prove,  if  He  was  evicted,  his  own  admission  by  the 
Rolls  of  the  Court ;  if  he  claims  as  Heir,  Devisee,  or 

(c)  1  Barn.  &  Aid.  40.        (d)  Roe  v.  Hillier,  3  Term  Rep.  162. 
(e)  1  Esp.  Dig.  N.  P.  448. 


CH  A  r.  IX.]          the  Action  of  Ejectment.  209 

Purchaser,  under  the  Tenant  who  was  last  seized  of  the 
Copyhold,  his  title  is  established  by  proving  the  admission 
of  the  Person  under  whom  he  claims,  by  the  Court  Rolls, 
and  then  establishing  his  title  ;  if  as  Heir  at  law,  by  show- 
ing his  pedigree  :  if  as  Devisee,  by  proving  the  Testator's 
Will :  and  if  by  Purchase,  by  proving  the  conveyances 
from  such  Person  to  him.      When  that  is  done,  the  De- 
fendant is  called  upon  to  show  his  title  which  is  under  the 
forfeiture. 

But  where  the  Ejectment  is  for  a  Copyhold,  and  the 
Person  who  claims  title(a)  has  never  been  admitted,  he 
must  give  in  Evidence,  an  application  to  the  Steward  of 
the  Court  to  be  admitted,  and  a  refusal  on  his  part,  for  an 
actual  admission  is  not  necessary ;  a  proceeding  which  in 
fact  should  be  taken  in  the  case  of  every  Ejectment 
brought  for  Copyhold  premises :  this  must  be  done  by 
some  Witness  who  accompanied  the  Lessor  of  the  Plain- 
tiff for  the  purpose  of  demanding  admission,  or  by  proving 
a  written  answer  to  such  an  application,  from  the  Steward 
or  Lord. 

By  Statute  55  Geo.  III.  ch.  192.  a  Devise  of  a  Copy- 
hold Estate  by  Will,  is  enacted  to  be  effectual  and  good 
without  a  previous  surrender  to  the  use  of  it ;  so  that  the 
production  of  the  Court  Rolls,  to  show  a  previous  surren- 
der to  the  use  of  the  Will,  is  now  no  longer  a  necessary 
part  of  the  Evidence  in  an  Ejectment  .for  Copyhold 
Premises :  proof  of  the  Will  is  sufficient  for  that  pur- 
pose. 

(o)  Doe  v.  Bellamy,  2  Mau.  8c  Selw.  87. 
Dd 


$10  Of  the  Evidence  in  [CHAP.  IX, 

5.  If  the  Ejectment  is  brought  by  the  Devisee  of  an 
Estate  in  Fee,  the  Plaintiff  is  required  to  give  strict  proof 
of  the  Execution  of  the  Will  under  which  he  claims,  as 
the  Defendant  generally  is  the  heir-at-law,  or  a  purchaser. 

For  that  purpose  the  Plaintiff  must  prove  the  death  of 
the  Testator,  and  that  he  was  in  possession  of  the  Estate 
at  the  time  of  his  death.  He  must  then  produce  the  ori- 
ginal Will  of  the  deceased.  If  there  was  no  personal 
Estate  given  by  it,  so  that  it  was  not  necessary  to  have 
any  Probate  of  it,  the  Devisee  must  produce  it ;  if  it  was 
brought  into  the  Commons,  by  reason  of  some  personal 
property  passing  by  it,  an  Officer  from  thence  must 
produce  the  original  Will,  and  state  from  whence  he 
brought  it. 

The  Execution  of  it  by  the  Testator  is  then  required  to 
be  clearly  proved,(6)  according  to  the  Statute  of  Frauds, 
which  requires  the  attesation  of  three  Witnesses ;  and  this 
must  be  done  by  one  at  least  of  the  Subscribing  Witnes- 
ses, who  must  be  called  to  prove,  that  the  Testator  exe- 
cuted the  Will  in  his  presence,  or  acknowledged  that  he 
had  signed  it,  and  that  of  the  two  other  Witnesses  who 
attested  and  subscribed  it  as  such,  in  the  Testator's  pre- 
sence, when  the  attestation  so  expresses  it.  But  if  there 
are  three  Witnesses  to  it,  the  Subscribing  Witness  need 
not  see  the  act  bf  signing  by  the  Testator  :(c]  it  will  be 
sufficient  if  he  acknowledged  to  them  together,  or  each  of 
them  separately,  that  the  Will  was  his,  and  the  signature 
his  hand-writing ;  and  the  Subscribing  Witnesses  must 

(6)  Phillips  on  Evidence,  434. 

(0  id.  4sr. 


CHAP.  IX.]  the  Action  of  Ejectment  211 

subscribe  their  namefe  in  the  Testator's  presence,  but  it 
need  not  be  so  expressed  in  the  attestation. 

In  practice  it  is  usual  to  call  one  Witness  only  to  prove 
the  Execution  of  it  by  the  Testator,  and  the  attestation  of 
it  by  the  other  Witnesses  ;  but  that  can  be  the  case  only 
when  they  were  all  present  together.  If  the  Witnesses 
attested  the  Will  at  different  times,  they  must  be  all  call- 
ed to  prove  the  Execution  of  the  Will  by  the  Testator  in 
the  presence  of  each,  and  their  attestation  of  it  in  his  pre-^ 
sence  ;(d)  for  the  Will  must  be  regularly  executed  in  the 
presence  of  three  Witnesses.  If  the  sanity  of  the  Testa- 
tor is  disputed,  or  the  regular  Execution  of  the  Will,  it 
will  always  be  prudent  for  the  Plaintiff  to  call  all  the  wit- 
nesses to  it. 

If  any  of  the  Subscribing  Witnesses  is  abroad,  it  will 
be  sufficient  to  prove  his  hand-writing  ;(e]  and  when  they 
are  all  dead,  it  will  be  sufficient  to  prove  the  Testator's 
hand-writing :  but  a  Will  thirty  years  old  proves  itself, 
as  in  the  case  of  a  Deed  ;  it  therefore  need  only  be  produ- 
ced. 

This  is  the  case  of  a  Devise  of  Estates  of  Inheritance  : 
(/*)  but  if  the  Property,  sought  to  be  recovered,  is  Copy- 
hold or  Leasehold  only  ;  as  the  Copyhold  by  Stat.  55 
Geo.  III.  requires  no  surrender,  and  it  and  Leasehold 
pass  by  a  Will  requiring  no  formal  attestation,  the  Plain- 
tiff" should  prove  that  the  Testator  was  entitled  to  it ;  in 
the  case  of  Copyhold,  by  showing  his  admission  and  en- 


(rf)  Phillips  on  Evidence,  439.          (<?)  2  Stra.  1 109. 
(/)  1  Esp.  Dig.  N.  P.  481. 


Of  the  Evidence  in  [CHAP.  1X« 

joyment  of  it ;  and  in  the  case  of  Leasehold,  by  producing 
either  the  Lease  under  which  .he  held  it,  or  showing:  his 

*  o 

title  to  it.  The  Plaintiff  should  then  produce  the  Probate 
of  the  Will,  by  which  the  Testator  gave  it  to  him  ;  and 
then,  in  the  case  of  Leasehold,  prove  the  assent  of  the 
Executor  or  Administrator  to  the  bequest.  To  prove 
this  last  fact  the  Executor  himself,  or  Administrator,  may 
be  a  witness,  or  some  Person  who  knows  of  the  assent 
being  given ;  so  proof  of  the  Executor  permitting  the 
rent  to  be  received  by  or  for  the  use  of  the  Legatee,  will 
be  sufficient  proof  of  it. 

Of  the  Evidence  by  the  Defendant  in  the  case  of  an  Eject- 
ment by  a  Devisee. 

1.  The  Defendant  may  prove  that  the  Testator,  at  the 
time  of  making  his  will,(g-)  was  not  sane.     This  is  matter 
of  fact  to  be  proved  by  Witnesses,  who  knew  him. 

2.  That  he  was  an  Infant.     If  the  Ejectment  is  for 
Lands,  or  Estates  of  Inheritance,  he  must,  in  that  case, 
prove  the  Testator  to  be  under  the  age  of  twenty-one 
years  by  Evidence  of  the  time  of  his  birth,  as  is  before 
mentioned  in  cases  of  Infants,  before  which  time  he  can- 
not devise  such  Estates. 

But  if  the  Ejectment  is  for  Copyhold  Lands,  the  Plain- 
tiff may  show,  that  by  custom,  an  Infant  of  a  certain  age 
may  devise  by  will ;  and  if  it  is  for  Leasehold ;  a  male 
may  devise  such  property  at  the  age  of  14  years,  and  a 

• 

O)  1  Esp.  Dig.  N,  P.  487. 
" 


CHAP.  IX.]  the  Action  of  Ejectment.  213 

female  at  12.     The  age  of  the  Testator  being  proved  as 
before  stated,  is  therefore  Evidence  of  title. 

3.  He  may  prove  that  Testatrix  was,  at  the  time,  a 
Feme  Covert.     For  she  cannot  make  a  Will,  unless  a 
power  to  do  so  has  been  reserved  in  her  settlement  when 
married.     Her  marriage  must  be  proved    as  is  before 
stated  ;  but  may  be  rebutted,  by  proof  of  the  Settlement 
before  marriage,  by  which  a  power  was  reserved  to  her  to 
make  a  Will :  this  must  be  done  by  producing  and  prov- 
ing the  Deed  by  the  attesting  Witness.    ' 

4.  He  may  show  that  the    Will  was  obtained  by  fraud, 
circumvention,  or  availing  himself  of  the  Testator's  im- 
becility of  mind  or  body.      This  is  matter  of  fact  to  be 
proved  by  viva  voce  Evidence  of  Persons  who  were  with 
the  Testator  before  or  at  the  time  of  his  death,  or  knew  of 
his  habits  before  it. 

5.  He  may  prove  the   Will  set  up  by  the  Devisee  to 
have  been  cancelled  or  revoked;  this  is  by  something  done 
in  fact,  or  by  operation  of  law.     This  last  can  only  be  ef- 
fectual under  the  Statute  of  Frauds,  by  showing  another 
Will  or  Codicil  in  writing,  or  other  Writing,  declaring  it 
to  be  cancelled  or  revoked  \(K]  and  which  must  be  duly- 
executed  as  the  original  Will  was,  or  by  the  first  Will 
being  torn,  burnt,  or  cancelled  by  the  Testator  himself, 
or  by  some  one  in  his  presence,  and  by  his  direction. 

When  this  is  to  be  set  up  in  answer  to  the  Will  on 
which  the  Devisee  relies,  Defendant  must  produce  an- 

(A)  Esp.  Dig,  490. 


214  Of  the  Evidence  in  [CHAP.  IX. 

other  Will  or  Codicil  of  later  date  than  that  given  in  Evi- 
dence by  the  Devisee  ;  and  he  must  prove  the  Execution 
of  it  with  the  same  solemnities  as  the  other  was  proved 
with.(z')  If  the  Defendant  relies  on  the  burning  or  tearing 
of  the  first  Will,  that  will  appear  by  the  Will  itself  when 
produced,  but  it  may  be  proved  on  the  other  side,  that  it 
was  done  by  accident  ;  otherwise,  either  the  burning  or 
tearing  of  it  is  good  proof  of  cancellation. 

But  there  is  this  difference  between  the  setting  up  a 
second  Will  as  £t  revocation  of  the  first,(£)  and  the  tear- 
ing or  burning  of  it,  in  this  respect,  that  though  the 
second  Will  will  operate  as  a  revocation  of  the  first, 
where  both  exist  together  ;  yet,  if  the  Testator  cancelled 
the  second  Will,  and  the  first  remained  undestroyed,  the 
latter  is  thereby  set  up  :(/)  but  if  the  first  Will  was  can- 
celled, as  by  tearing  off  the  seal  and  hand,  or  burning  the 
copy,  it  will  not  be  set  up  by  cancelling  the  second  will  : 
these  are  matters  of  fact  to  be  proved  by  Witnesses. 


6.  The  Defendant  may  set  up,  in  answer  to  a 
the  revocation  of  it  by  operation  of  law.  These  are,  1. 
Marriage  and  the  birth  of  a  child  taking  place  subsequent 
to  the  making  of  the  Will.  For  this  purpose  the  De- 
fendant must  prove  the  actual  marriage  of  the  Testator  as 
before-mentioned,  (page  99.)  and  prove  the  birth  of  a 
child  or  children.  2.  By  producing  and  proving  a  Jine 
levied  of  the  lands  in  dispute,  or  a  recovery  suffered,  or 
any  Deed  of  Conveyance  or  Settlement  of  them,  made 
subsequent  to  the  Will,  or  what  amounts  to  a  change  of 

(0  1  P.  Wm.  343.  (*)  Esp.  Dig'.  491.    4  Burr.  2512. 

(0  Cowp.  49.  (m)  1  Esp.  Dig.  N.  P.  492. 


CHAP.  IX.]  the  Action  of  Ejectment.  215 

the  Estate.  In  such  case  the  Officer's  exemplification  and 
a  copy  of  the  Fine  or  Recovery  should  be  produced,  and 
the  Execution  of  the  Deed  declaring  the  uses  be  duly 
proved. 

7.  The  Defendant  may  show  the  Will  to  be  inopera- 
tive on  the  ground,  that  the  Testator  became  entitled  io  the 
Estate  in  question,  by  descent  or  purchase,  subsequent  to 
the  making  of  the  Will  for  such  lands  which  pass  by  it. 
This  is  done  by  showing  the  Conveyances  under  which 
the  Testator  took,  and  their  dates  of  Execution. 

5.  Of  the  Evidence  in  an  Ejectment  brought  by  a  per- 
son claiming  as  Heir-at-law. 

In  this  case  the  Plaintiff  must  make  out  his  case  by 
strict  Evidence  of  Pedigree,  in  an  unbroken  line  of  des- 
cent. If  he  claims  to  be  son  of  the  Person  last  seized, 
he  must  prove  not  only  that  he  was  so,  but  was  his  legi- 
timate son. 

The  best  Evidence  of  this,  is  proof  of  the  actual  mar- 
riage of  his  Father  and  Mother,  by  Witnesses,  who  were 
present  at  the  time  ;  the  copy  of  the  marriage  registry, 
and  cohabitation. 

This  -is  done  by  producing  an  examined  copy  of  the 
Register  from  the  Church  Books,  and  the  viva  voce  testi- 
mony of  Witnesses  who  know  the  parties. 

When  such  full  and  precise  Evidence  cannot  be  had, 
their  cohabitation:  the  introduction  of  the  Plaintiff's 


216  Of  the  Evidence  in  [CHAP.  IX. 

Mother  by  his  Father  as  his  Wife :  her  reception  as  such 
in  Society  :  his  declarations  that  they  were  married  :  is  all   • 
good  Evidence,  and  may  be  proved  by  Persons  acquaint- 
ed with  the  Family. 

The  Plaintiff  should  also  prove,  that  his  Father  either 
had  no  other  Son,  or  that  he  was  the  eldest,  if  he  had : 
and  if  the  Ejectment  is  by  a  woman,  who  claims  as  Heir, 
she  should  prove,  that  her  Father  had  no  Son. 

For  this  purpose,  entries  by  the  parents,  in  the  Family 
Bible,  of  the  birth  of  their  children,  have  been  held  good 
Evidence.  Entries  in  the  Books  of  the  Parish  where  the 
Father  and  Mother  resided,  of  their  baptism,  are  good 
Evidence,  and  are  proved  by  copies  examined  with  the 
original.  They  express  the  time  of  the  birth  of  their 
children,  and  of  course  ascertain  which  is  the  eldest :  but 
as  it  often  happens  that  the  Father  and  Mother  may  have 
had  many  children  baptized  in  the  same  Parish ;  and  the 
Plaintiff  may  appear  by  the  Registry  not  to  be  the  eldest, 
though  the  others  are  dead ;  it  will  then  be  necessary  for 
him  to  prove  their  deaths  ;  and  if  any  born  before  him 
appear  to  have  been  married,  he  should  prove  either  that 
they  had  no  issue,  or  that  if  they  had,  that  they  are  dead, 
as  the  children  of  an  elder  brother  have  title  before  him  : 
for  this  purpose  examined  copies  of  the  Registers  of  bu- 
rials are  good  Evidence. 

These  facts  are,  however,  capable  of  proof  by  Wit- 
nesses who  knew  the  Family,  who  can  speak  to  the  rela- 
tionship in  which  the  Plaintiff  stood  to  the  Person  he 
claims  under,  and  who  may  know  of  the  deaths  of  those 
who  are  before  the  Plaintiffs  in  point  of  title.  But  though 


CHAP.  IX.]          the  Action  of  Ejectment.  217 

this  Evidence  is  sufficient,  it  is  always  advisable  to  have 
the  Copies  of  the  Registers,  as  they  are  without  sus- 
picion. 

In  settling  Evidence  of  Pedigree,  it  must  be  observed 
as  a  Rule,  that  a  Party  has  not  made  out  his  title  suffi- 
ciently, if  by  possibility  there  may  be  existing  some 
lineal,  or  collateral,  Relation  having  better  title  than  he 
has. 

But  that  there  is  such,  is  not  to  be  supposed  without 
some  ground  :  as  if  a  Party  proves  himself  to  be  the  son 
of  John  and  Mary,  it  is  not  to  be  presumed  that  they  had 
a  Son  elder  than  the  Plaintiff;  but,  if  an  entry  is  found,  or 
produced  on  the  other  side,  or  parol  Evidence  given  that 
they  had  a  Son  elder  than  the  Plaintiff,  it  will  be  presum- 
ed that  he  is  living,  unless  the  Plaintiff  shows  the  contra- 
ry ;  and  such  Son  having  better  title,  the  Plaintiff  cannot 
recover. 

The  Rules  here  laid  down  apply  to  cases  of  collateral 
kindred :  if  the  Plaintiff  claims,  for  example,  as  the 
nephew  of  the  Person  last  seized,  he  must  show  that  he  is 
heir  to  the  eldest  brother  of  such  Person  ;  or  if  he  derives 
title  as  Nephew  by  the  mother's  side,  that  such  Person  had 
no  brother. 

This  is  sufficient  for  the  Plaintiff,  as  a  prima  facie  case ; 
and  then  the  Defendant  may  impeach  it. 

If  a  Devisee,  or  any  other  Person,  gets  into  possession, 
and  an  Ejectment  is  brought  by  the  Plaintiff  claiming  as 
Heir-at-law  to  him  last  seized,  either  against  a  Person 


218  Of  the  Evidence  in  [CHAP.  IX. 

who  claims  in  the  same  right,  or  a  Devisee  in  possession  ; 
the  Defendant  may  set  up  the  defence  of  Bastardy  in  the 
Lessor  of  the  Plaintiff. 

This  is  a  question  of  fact  to  be  proved  by  witnesses 
only,  in  most  cases,  (ri]  They  are  most  usual  where  a 
marriage  had  in  fact  taken  place  between  the  Plaintiff's 
mother,  and  the  Person  whom  he  sets  up  as  his  father ; 
but  the  Defendant  can  prove  that  the  Plaintiff  was  born 
before  the  marriage  took  place :  while  the  Plaintiff's 
Father  was  absent  from  England  :  or  in  a  distant  part  of 
the  kingdom,  where  the  Plaintiff  was  born,  and  had  been 
so  for  more  than  nine  months  preceding.(o)  So  that  there 
could  be  no  presumption  of  access. 

2.  That -though  a  marriage  had  taken  place,  it  was  void 
under  the  Marriage  act,  26  Geo.  III.  c.  33.Q&)  as  being 
by  an  Infant  without  the  consent  of  his  Father ;  or  if  he  is 
dead,  of  the  Guardian  :  or  of  the  Mother,  if  there  is  no 
Guardian,  if  living  and   unmarried ;  and  if  there  is  no 
Mother  living  and   unmarried,  of  a  Guardian   appoint- 
ed by  the  Court  of  Chancery :  so  by  the  same  Statute 
he  may  show  that  the  marriage,  though  celebrated  in  a 
church  or  chapel,  was  without  publication  of  Banns  or 
Licence. 

3.  He  may  prove  that  the  Plaintiff's  father  was  impo- 
tent, and  so  he  of  course  a  Bastard,  (q] 

4.  He  may  prove  a  sentence  of  Divorce  dissolving  the 

(n)  1  Esp.  Dig.  N.  P.  495.  (o)  Bull.  N.  P.  1 12. 

00  Vid.  Dig.  49 T,  (g)  2  Str,  940. 


CHAP.  IX.]         the  Action  of  Ejectment.  219 

marriage  which  is  done  by  a  Copy  of  the  Proceedings 
in  the  Spiritual  Court,  which,  while  unrepealed,  is  conclu- 
sive.(r) 

5.  He  may  show,  that  the  Plaintiff"  was  born  more  than 
nine  months  after  his  father's  death.(^) 

It  will,  after  consideration  of  these  general  heads,  be 
proper  to  consider  the  Evidence  in  Ejectment  where  a 
Fine  or  Recovery  has  taken  place,  as  the  operation  of  them 
may  occur  in  all  the  preceding  cases. (t) 

If  a  l>me  has  been  levied  of  the  lands,  for  which  an 
Ejectment  is  brought,  the  Lessor  of  the  Plaintiff  should, 
prior  to  his  bringing  the  Ejectment,  make  an  actual  entry, 
on  the  lands,  or  cause  one  to  be  made  in  his  name,  and 
claim  the  possession.  Of  this  entry  Evidence  must  be 
given  at  the  Trial :  and  though  it  is  not  required  to  be 
done,  unless  there  has  been  Fine  with  Proclamations,  it  is 
always  advisable.(w) 

A  Fine,  or  Recovery,  is  generally  set  up  by  the  De- 
fendant in  bar  of  the  Plaintiff 's  right ;  and  when  valid 
is  conclusive,  unless  the  party  comes  within  some  of  the 
exceptions  which  afford  to  the  Plaintiff  an  answer  to  the 
effect  of  the  Fine  or  Recovery. 

The  Evidence  necessary  in  the  case  of  a  Fine  is  given  : 
— 1.  By  the  production  of  Chirograph  of  the  Fine.  This 
is  made  out  by  Chirographer  of  the  Court  of  Common 

(r)  Carth.  225.  («)  Bull.  N.  P.  414. 

((}  Esp.  Dig.  459.    4  H.  7,  ch.  20.     («)  9  East.  19, 


Of  the  Evidence  in  [€HAP.  IX. 

Pleas,(;r)  and  is  Evidence  of  itself :  but  if  it  is  a  Fine 
vvhh  Proclamations,  it  is  not  sufficient  proof  of  the  Pro- 
clamations that  they  are  indorsed  on  the  Chirograph  :(z/) 
they  must  be  proved  by  a  Witness  who  examined  them 
with  the  Roll,  and  be  thereby  proved  to  have  taken  place. 
—2.  In  addition  to  the  Fine  it  is  necessary  to  have  Evi- 
dence at  the  Trial  to  show,  that  the  Person,  by  whom  the 
Fine  was  levied,  was  in  possession  of  the  land  when  he 
did  so  levy  it  \(z]  for  otherwise  the  Fine  will  be  of  no 
avail :  but  proof  of  payment  of  rent  to  the  Cognizor  will 
be  sufficient :  so  there  may  be  other  Evidence  ;  such  as 
proof  of  actual  occupation  or  enjoyment. 

If  a  recovery  is  set  up,  it  is  given  in  Evidence  by  pro* 
duction  of  an  examined  copy  of  it. 

If  the  Recovery  was  suffered  by  a  Tenant  in  Tail,  that 
is  sufficient :  but  if,  at  the  time  of  the  Recovery  suffered, 
there  was  a  Tenant  for  life,  in  which  case  a  surrender 
of  his  Estate  is  necessary  to  give  validity  to  the  Recovery, 
that  surrender  in  case  of  a  modern  Recovery,  must  be 
proved  to  have  taken  place.(a) 

But  after  twenty  years'  possession  under  a  Recovery, 
(b)  the  title  of  a  Purchaser  is  declared  to  be  valid,  on 
proof  of  the  Deed  making  a  Tenant  to  the  Prascipe,  and 
declaring  the  uses. 

6.  The  question  often  arises  in  trial   of  Ejectments, 

(*)  Gilb.  Ev.  21.  (y)  Bull.  N.  P.  230.     3  Taunt.  166, 

(z)  1 1  East.  495.  Cowp.  621.  (a)  Stra,  1119.     2  Burr.  1065. 
(d)  Vid.P/ea.  Stat.  14  Geo.  2.  c.  20. 


CHAP.  IX.]         the  Action  of  Ejectment.  221 

as  to  whether  lands  were  parcel  or  not  parcel,  or  of  one 
parish  or  another. 

In  these  an  old  Terrier  of  a  Manor,  ecclesiastical,  or 
temporal,  may  be  given  in  Evidence,  (c) 

7.  If  the  Ejectment  is  by  one  Tenant  in  Common 
against  another,  to  recover  his  part  of  the  Premises,(rf) 
the  Plaintiff  must  show  that  the  Defendant  claims  the 
whole   Estate,  and  refuses  to  admit  him  to  any   part, 
which  will  be  sufficient  :(<?)  but  it  will  not  be  sufficient  to 
show  that  the  Defendant  took  all  the  profits  ;  the  Plaintiff 
should,  therefore,  always  be  prepared  with  proof  of  his 
demand,  of  his  part,  made  on  the  other  Tenant  in  com- 
mon. 

8.  If  an  Ejectment  is  brought  for  Tithes,  or  for  a  Rec- 
tory. 

The  Lessor  of  the  Plaintiff  must  prove  that  he  was  Ad- 
mitted, instituted,  and  inducted  into  the  Rectory, (f)  had 
read  and  subscribed  the  thirty-nine  articles,  and  declared 
his  assent  and  consent  to  every  thing  contained  in  the 
Book  of  Common  Prayer. 

Institution  alone  is  not  sufficient ;  and  in  fact  it  is  right, 
in  every  case,  to  prove  presentation  by  the  Patron  to  the 
Rectory,  (g) 

(c)  Bull.  N.  P.  248.  (d)  1  Esp.  Dig.  N.  P.  442. 

(<r)  11  East.  95.  (/)  1  Sid.  220. 

(g)  1  Vent.  14.     1  Sid.  423. 


222  Of  Evidence  in  [CHAP.  IX. 

The  Letters  of  Presentation  are  addressed  to  the  Bishop 
of  the  Diocese,  and  are  there  to  be  found. 

The  admission,  induction,  and  taking  possession  of  the 
Living ;  as  that  is  done  in  the  Church,  the  facts  above  re- 
quired are  proved  either  by  the  Clerk  of  the  Parish,  some 
of  the  Parishoners,  or  any  Clergyman  who  might  have 
been  assistant  at  the  ceremony. 

But  the  mere  fact  of  taking  the  Tithes  is  clearly  not 
sufficient  :(h)  and  an  entry  on  the  Glebe  should  be 
proved. 

It  is  always  necessary,  at  the  Trial  of  an  Ejectment,  to 
be  prepared  with  proof  that  the  Defendant  was  in  posses- 
sion of  the  Premises  for  which  the  action  is  brought. 
This  may  be  done  by  proof  of  actual  enjoyment ;  or,  if  let, 
by  calling  the  Tenant  who  paid  rent  to  the  Defendant. 

(A)  Latch.  62. 


- 

t 

the  Action  for  Slander.  223 


CHAPTER  X. 


OF    SETTLING    EVIDENCE  IN    THE    ACTION   OF   SLANDER. 

1.  A  HE  Plaintiff  in  this  Action,  if  for  words,  is  bound 
to  prove  the  words  laid  in  his  Declaration.  This  must 
be  by  some  witness  who  heard  the  Defendant  speak 
them  ;  and  if  they  are  of  ambiguous  meaning,  he  must 
also  prove  that  he  understood  them  in  the  slanderous 
meaning  imputed  to  them. (a) 

2.  If  the  Action  is  for  a  Libel,  or  written  Slander,  the 
Plaintiff  must  produce  the  Letter,  or  Publication,  in  which 
the  Slander  is  contained ;  but  if  it  is  a  Letter,  or  Pamph- 
let, he  must  prove  the  publication ;  that  is,  that  the  Let- 
ter, or  Pamphlet,  was  sent  to  be  copied  by,  or  shown  to,  or 
read  by,  a  third  Person.  A  Newspaper,  from  its  nature, 
implies  publication. 

But  though  the  Plaintiff  must  prove  the  words,  he  is  not 
bound  to  prove  them  precisely,  or  in  the  very  terms  they 
are  laid  in  the  Declaration; (b)  it  is  sufficient  to  prove  that 

(a)  2  Esp,  Dig.  N.  P.  23.  (A)  Bull.  N.  P.  5. 


224  Of  the  Evidence  in  [CHAP.  X. 

they  are  substantially  the  same  in  point  of  sense  and  man- 
ner of  speaking. 

Therefore,  if  the  words  are  laid  in  one  Person,  and 
proved  to  be  spoken  of  in  another,  as  if  laid,  "He  is  a 
Thief,"  and  these  proved  are  "  You  are  a  Thief," 
that  Evidence  will  not  support  the  Declaration ;  for  the 
words  are  substantially  different  spoken  of,  or  to,  a  Per- 
son.^) 

So  if  the  words  are  laid  positively  ;  as  "  A.  B.  cannot 
pay  his  labourers,"  and  the  Evidence  is,  that  they  were 
spoken  interrogatively,  "  Have  you  heard  that  A.  B.  can- 
not pay  his  labourers  ?"  that  will  not  support  the  Declara- 
tion, for  their  import  is  different ;  in  one  sense  they  as- 
sert matters  as  a  fact ;  in  the  other,  they  only  allude  to  a 
report. 

3.  Where  words  are  spoken,  or  a  Libel  written,  of  a 
Person  in  any  Profession,  Business,  or  Situation,  and 
which  are  actionable  only  as  alluding  to  such  Profession, 
Business,  or  Situation ;  that  the  Plaintiff  is  a  Member,  or 
belongs  to  them,  must  be  proved,  as  laid  in  the  Declara- 
tion. 

As  if  a  Physician  was  to  bring  an  Action  for  calling 
him  a  Quack,  he  would  be  bound  to  prove  a  Diploma 
from  the  College  of  Physicians  allowing  him  to  practise, 
or  a  regular  degree  of  Doctor  of  Physic  from  some  of  the 
Universities ;  but,  in  that  case,  the  Seal  of  the  University 

(c)  Bull.  N.  P.  5. 


CHAP.  X.]  the  Action  for  Slander.  '  225 

or  College  granting  the  Degree  or  Diploma  ought  to  be   ' 
proved.(f/) 

But,  in  the  case  of  an  Attorney,  it  is  sufficient  to  prove 
his  having  conducted  suits,  and  practised  as  such.(e) 

4.  Where  words  are  actionable  only  as  spoken  of  a 
Person  in  a  particular  character  or  situation  or  alluding 
to  any  particular  transaction  ;  as,  for  example,  if  there 
was  a  conversation  or  colloquium  respecting  the  circum- 
stances of  any  Person,  which,  under  particular  circum- 
stances, may  be  actionable  or  not ;  the  colloquium  must  be 
proved  as  introductory  of  the  Slander.      This  must  be 
done  by  a  witness  who  was  present  and  heard  it.(/*) 

5.  The  Plaintiff  cannot  go  into  Evidence  of  any  special 
damage  arising  from  the  Slander,  unless  he  has  laid  it  in 
his  Declaration ;  and  then  he  is  confined  to  that  only  ;(g) 
as,  for  example,  if  the  Plaintiff  laid  his  special  damage  to 
be  the  loss  of  the  custom  of  T.  S.,  which  in  the  language 
of  the  Declaration  is,  "  whereby  he  lost  the  custom  of  T. 
S.  and  of  divers  other  good  and  worthy  subjects"  the  Evi- 
dence would  be  confined  to  the  damage  from  the  loss  of 
the  custom  of  T.  S.  only,  and  the  Plaintiff  could  not  give 
Evidence  of  the  loss  of  any  other.(^) 

6.  Where  words  are  actionable  by  reason  of  some  spe- 
cial damage  arising  from  them,  but  are  not  so  of  them- 

(</)  8  Term  Rep.  308. 

(<?)  4  Term  Rep.  366.     2  Esp.  Dig.  N.  P.  21. 
(/)  2  Esp.  Dig.  N.  P.  24. 
($•)  2  Ld.  Raym.  1007.     1  Stra.  665. 
(//)  2  Esp.  Dig.  N.  P.  23.     1  Stra.  666. 

Ff 


226  Of  the  Evidence  in  [CHAP.  X' 

selves ;  as  to  say  of  an  unmarried  woman,  "  She  had  a 
Bastard,"  which  words  are  not  of  themselves  actionable  ; 
but  if  the  Declaration  went  on  to  state  "  by  which  T.  S. 
who  would  have  married  her,  refused  to  do  so,''  the 
Plaintiff  must  prove  the  very  special  damage  laid,  or  he 
will  be  non-suited ;  for  it  is  that  damage  only  which  will 
sustain  the  Action  ;  and,  according  to  the  preceding  Rule, 
the  Plaintiff  must  prove  that  T.  S.  refused  to  marry  her, 
and  cannot  be  admitted  to  prove  that  any  other  Person  re- 
fused to  marry  her.(?) 

7.  Though  the  Declaration  lays  the  speaking  of  the 
words  on  a  particular  day,   the  Plaintiff  may  give  Evi- 
dence of  the  same  words,  or  of  the  same  import,  spoken 
by  the  Defendant  at  other  times :  but  he  cannot  give 
Evidence  of  other  actionable  words  spoken  by  him  at 
other  times, (Xr)     So,  in  the  case  of  a  Libel,  the  Plaintiff 
cannot  give  Evidence  of  other  Libels  published  of  him 
by  the  Defendant,  unless  they  refer  to  the  Libel  stated 
in  the  Declaration,  in  which  case  he  may. 

8.  As  the  most  general  case  of  Libel  is  for  publica- 
tion in   the  Newspaper,  the  Evidence  to  fix  the  Pub- 
lisher or  Printer  is  regulated  by  Stat.  38  Geo.  III.  ch.  71. 
quod  vide.(l) 

9.  Where  the  initials  of  the  name  only  are  used,  or 
there  is  any  doubt  of  the  meaning  of  the  words,  the  Plain- 
tiff must  call  witnesses  to  prove  that  he  was  the  Person 
designated,  or  that  the  words  used  applied  to  him,  and 
that  the  witnesses  so  understood  them. 

(i)  2  Ld.  Raym.  1007.  (*)  2  Campb.  72. 

(0  2  Esp.  Dig.  35. 


CHAP.  X.]  the  Action  for  Slander.  227 

Of  the  Evidence  by  the  Defendant. 

1.  The  Defendant  may  give  in  Evidence,  that  the 
words,  which  he  spoke,  or  wrote  in  the  imputed  Libel,  are 
true  :  but  this  is  only  admissible  in  Evidence,  where  the 
Defendant  has  pleaded  that  they  are  so. 

2.  The  General  Issue  in  Slander  is,  Not  Guilty.   This 
puts  the  Plaintiff  on  proof  of  the  words  laid :  but,  as  far  as 
respects  the  Defendant,  it  is  not  a  mere  denial  that  he 
spoke  the  words,  but  that  he  spoke  them  not  slanderous- 
ly :  for  though  the  words  spoken  may  be  actionable  as 
written  or  spoken,  the  Defendant  may  give  Evidence  that 
they  were  not  spoken  in  the  actionable  and  slanderous 
sense  imputed  to  them,  but  with  a  different  import.     This 
is  done  by  the  Defendant  calling  witnesses  to  speak  to  the 
subject  of  the  conversation  when  they  were  spoken,  or 
the  manner  in  which  they  were  applied  ;  as  if  the  conver- 
sation was  respecting  the  Plaintiff's  having  killed  Game, 
and  the  Defendant  was  to  say,    "  He  is  a  murderer," 
meaning  to  apply  that  term  to  the  quantity  the   Plaintiff 
had  killed,  the  words  would  in  that  case  not  be  actionable. 

3*  So  he  may  prove,  that  he  used  the  words  as  Counsel 
in  a  cause,  applicable  to  the  case,  (m)  or  that  he  spoke  or 
wrote  them  in  confidence  ;  as  if  on  inquiry  of  the  De- 
fendant as  to  the  solvency  of  a  Person  in  trade,  or  of  the 
character  of  a  Servant,  he  was  to  say,  that  he  thought  the 
former  in  very  doubtful  circumstances,  or  the  latter  a  ser- 
vant addicted  to  dishonesty  or  drunkenness,  meaning  to 
give  a  fair  and  honest  caution  to  the  Person  inquiring  : 

(m)  CVo.  Jac.  91. 


228  Of  the  Evidence  in  [CHAP.  X. 

Evidence  that  the  words  were  so  spoken  or  written  would 
render  the  words  not  actionable.  These  facts  are  proved 
by  witnesses,  who  are  allowed  in  such  cases,  (though  not 
generally)  to  speak  from  opinion,  as  to  what  object  and 
with  what  intention  they  were  spoken. 

4.  In  case  of  Libel,  the  Defendant  under  the  General 
Issue  may  give  in  Evidence,  in  mitigation  of  damages, 
that  the  Plaintiff  was,  before  the  publication,  suspected  of 
being  guilty  of  the  crimes  imputed  to  him  in  it.  But  this 
is  only  allowable  where  the  General  Issue  is  pleaded.(ra) 

(«)  2  Esp.  Dig.  28.     2  Campb.  277.     2  Mau.  &  Selw.  284. 


the  Action  for  Malicious  Prosecution,  fcfc.       229 


CHAPTER  XL 


OF     SETTLING    THE     EVIDENCE      IN     THE    ACTION     FOR 
MALICIOUS   PROSECUTION. 

JL  HE  settling  of  Evidence  for  the  Plaintiff  in  this  case  is 
best  done,  by  attending  to  a  few  general  rules  applicable 
to  all  cases. 

1.  It  is  laid  down  as  a  general  rule  in  this  Action,  that 
to  entitle  the  Plaintiff  to  recover  in  it,  he  must  show  the 
Proceedings  instituted  against  him  by  Defendant,  and 
prove  that  they  were  groundless ;  that  is,  were  instituted 
without  any  probable  cause,  and  proceeded  from  malice  ; 
and  the  Plaintiff  must  establish  both  by  Evidence.  + 

The  Plaintiff,  therefore,  in  this  Action,  must  first  give 
in  Evidence  the  Proceedings  themselves  which  the  De- 
fendant issued  against  him ;  as  if  the  Plaintiff  declares 
that  the  Defendant  procured  him  to  be  taken  into  custody 
under  a  Warrant  granted  by  a  Justice  of  Peace  on  his  in- 
formation, the  information  must  be  produced :  this  is 
done  by  subpoenaing  the  Justice  of  Peace,  or  his  Clerk, 
with  a  duces  tecum  of  the  original  information,  and  proof 
by  them  that  it  was  made  and  sworn  to  by  the  Defend- 
ant ;  and  then  the  Warrant  granted  on  it,  which  is  either 
in  the  hands  of  the  Constable  or  Justice,  must  be  produc- 
ed. The  arrest  and  detention  of  the  Plaintiff  under  it 


230  Of  the  Evidence  in  the  [CHAP.  XI. 

must  be  next  given  in  Evidence,  and  the  discharge  by 
the  Justice. (a) 

2.  If  the  Prosecution  was  by  Indictment,  the  Plaintiff 
must  give  in  Evidence  a  copy  of  the  Indictment  and  Ac- 
quittal, examined  with  the  original,  either  in  the  King's 
Bench  or  Quarter  Sessions  ;  or  the  original  Proceedings 
may  be  produced  by  the  Officer  of  the  Court  where  the 
Indictment  was  preferred.     But  if  the  Indictment  was  for 
Felony,  as  no  Action  will  lie  in  that  case  if  the  Defendant 
has  been  acquitted,  unless  the  Court  grant  a  copy  of 
the  Record  and  Acquittal,   Evidence    must  be    given 
to  that  effect,   and  the  leave  be  proved  :(6)  in  which 
case  there  should  be  an  order  from  the  Attorney  General 
to  the  Officer  of  the  Court,  to  produce  the  Record  of  Ac- 
quittal and  the  order  of  the  Court.     The  copy  of  the  In- 
dictment, if  produced,  must  be  proved  by  a  witness  who 
examined  it  with  the  original,  and  then  Evidence  be  given 
of  the  Trial  and  Acquittal  of  the  Defendant,  if  the  Record 
is  not  sufficient ;  which  .it  should  seem  to  be. 

3.  If  the  Action  is  for  a  malicious  arrest,  either  where 
there  was  nothing  due  by  Plaintiff  to  Defendant,  or  the 
arrest  was  for  a  much  larger  sum  than  was  really  due,  if 
the  Plaintiff  states  that  he  was  held  to  Bail  for  a  certain 
sum,  by  virtue  of  an  Affidavit  made  by  the  Defendant,  he 
must  produce  an  examined  copy  of  the  Affidavit  made 
by  the  Defendant  to  hold  him  to  Bail,  or  the  original  Affi- 
davit, and  prove  the  hand-writing  of  Defendant  subscrib- 
ed to  it.(c)     But  as  that  averment  is  now  usually  omitted, 

(a)  2  Esp.  Dig.  N.  P.  29.  (d)  14  East.  302. 

(c)  Per  Buller,  J.  2  Esp.  Dig.  N.  P.  38.    Bull.  N,  P,  14. 


CHAP.  XL]      Action  for  malicious  Prosecution.          231 

and  the  arrest  stated  generally,  the  Writ,  with  an  Indorse- 
ment on  it,  to  hold  to  Bail  for  the  sum  mentioned,  must 
be  produced,  and  k  will  be  sufficient  Evidence.  The 
Plaintiff  must  then  prove  an  actual  arrest  at  the  Defendant's 
Suit,  which  is  done  by  the  Officer  of  the  Sheriff  to  whom 
the  Writ  was  directed  ;  he  must  then  prove  that  the  Suit, 
in  which  he  was  so  arrested,  was  terminated,  either  by  a 
Judgment  of  non  pros,  or  verdict,  or  discontinuance  ;  so 
that  it  should  appear  that  the  Plaintiff  had  no  cause  of 
Action,  (d) 

4.  In  all  the  cases  now  put,  the  Plaintiff  must  prove  that 
the  Proceedings  were  groundless,  and  that  known  to  the 
Defendant  ;(e)  as,  ex.gr.  if  he  had  been  taken  on  a  charge 
made  before  a  Justice  of  Peace :  he  may  prove  that  he 
was  not  present  when  the  imputed  offence  was  committed, 
or  was  in  another  place,  so  that  he  would  not  be  guilty, 
and  that  the  Defendant  knew  it :  in  like  manner,  if  in- 
dicted, he  may  give  similar  Evidence  ;  and  if  he  was  ar- 
rested for  more  than  was  due,  he  may  show  a  settlement 
of  accounts  before  the  arrest  made,  between  him  and  De- 
fendant, and  a  small  balance  then  struck  as  only  due,  not- 
withstanding which,  Defendant  had  arrested  him  for  a 
large  sum, 

These  are  cases  where  there  have  been  Proceedings  by 
the  Defendant  without  any  probable  cause  ;  in  which  case 
malice  will  be  inferred  :  but  the  Plaintiff,  when  not  in  pos- 
session of  such  Evidence,  may  give  Evidence  of  actual 
malice  ;  such  as  declarations  made  by  him  that  he  would 


(d)  2  Esp.  Dig.  N.  P.  38.  1  B.  &  P.  281. 
0)  2  Esp.  Dig.  N.  P.  30. 


232  Of  the  Evidence  in  the        [CnAp.  XI. 

ruin  the  Plaintiff.  And  Evidence  of  actual  malice  being 
admissible  to  any  extent,  it  is  always  adviseable  to  have 
it ;(/")  such  as  advertisements  put  into  the  Newspaper, 
mentioning,  e.  g.  without  any  apparent  reason  for  it,  that 
a  true  Bill  of  Indictment  was  found  against  the  Plaintiff. 

These  matters  of  Evidence  it  is  impossible  to  specify ; 
and  the  others  depend  on  the  averments  in  the  Declara- 
tion :  such  as  being  put  to  great  expense :  the  Plaintiff 
should  be,  therefore,  prepared  with  proof  of  the  amount.- 

5.  But,  in  every  case,  the  Plaintiff  must  prove  the  Pro- 
ceedings, which  the  Defendant  instituted  against  him,  to  be 
at  an  end.(e§-)     As  in  the  case  first  put,  he  must  show  that 
the  Justice  dismissed  the  complaint ;  in  the  second,  his 
Acquittal ;  and,  in  the  third,  that  the  Suit  commenced  by 
the  arrest  is  at  end,  either  by  a  verdict,  non  pros,  or  dis- 
continuance, in  which  case  of  a  vefdict  or  non  pros,  he 
must  have  an  examined  copy  of  the  Judgment  Roll ;  in 
the  second,  he  must  produce  the.  Rule.     And  all  these 
proceedings  must  be  proved  by  written  Evidence,  and 
cannot  be  dispensed  with.(/^) 

6.  In  preparing  and  settling  the  Evidence  for  Trial  in 
this  Action,  the  greatest  attention  must  be  observed  in 
comparing  the  -written  Evidence  with  the  Declaration,  and 
examining  the  parol  by  the  averments  to  be  proved,  as 
any  variance  in  that  respect  is  fatal. 

Thus,  if  the  Declaration  states  that  the  Plaintiff  had 

(/)  l  Stra.  691. 

fe)  2  Esp.  Dig.  N.  P.  31.    Bull.  N.  P.  13.    Salk.  12.  Dougl. 
205. 
(A)  2  Esp.  N.  P.  C.  27.  MSS,  Cas. 


CHAP.  XI.]     Action  for  malicious  Prosecution.          233 

been  maliciously  arrested,  and  held  to  Bail  on  a  Writ  re- 
turnable in  Easter  Term,  and  the  Writ  when  produced 
appeared  to  be  of  Trinity.  If  the  Declaration  states, 
that  the  Plaintiff  had  been  maliciously  taken  into  custody 
under  a  Warrant  for  Felony,  and  the  Warrant  when  pro- 
duced was  for  a  Misdemeanor,  or  on  suspicion,  the  Evi- 
dence would  vary  from  the  Declaration,  and  the  Plaintiff 
would  be  non-suited.  (/) 

7.  The  objects  of  special  damage  are  matters  stated  in 
the  Declaration,  and  vary  with  the  case.  Thus,  in  the 
case  of  a  malicious  arrest,  if  the  Plaintiff  averred  that  he 
wras  in  trade,  and  in  consequence  of  it  having  got  abroad 
that  he  had  been  arrested,  that  other  Creditors  had  arrested 
him,  who  would  not  have  done  so  but  on  account  of  their 
belief  that  his  credit  was  bad,  concluding  it  to  be  so  by 
reason  of  his  arrest,  the  Persons  who  so  arrested  him 
must  be  called  as  witnesses  to  prove  not  the  arrest  of  the 
Plaintiff  only,  but  their  motives  for  doing  so.  But  in 
every  case  the  Plaintiff  must  have  been  put  to  certain  ex- 
penses ;  these  are  always  laid  in  the  Declaration,  and  are 
proved  at  the  Trial  by  witnesses. 

Of  the  Evidence  for  the  Plaintiff  in  an  Action  for  a  Con- 
spiracy. 

This  Action,  as  to  its  object,  differs  nothing  from  the 
Action  for  malicious  Prosecution,  except  that  more  per- 
sons than  one  are  implicated  in  it ;  and  the  same  Evidence 
is  required.  If  the  Action  is  for  a  Conspiracy,  two  at 

(i)  2  Esp.  Dig.  N.  P.  35.     4  Term  Rep.  590. 
Gg 


234  Of  the  Evidence  in  [CHAP.  XL 

least  must  be  found  Guilty ;  but  if  the  Action  is  Case  in 
the  nature  qf  a  Conspiracy,  a  verdict  may  pass  against  one 
only.(A-) 

2.   Of  the  Evidence  for  the  Dejendant.(f) 

The  General  Issue  in  this  Action  is  Not  Guilty ;  and 
under  it  the  Defendant  may  go  into  any  Evidence  to  jus- 
tify the  proceedings  for  which  the  Action  has  been  brought 
against  him.  He  may  show  a  probable  cause,  which  in 
all  cases  is  sufficient.  As  if  the  Action  be  for  suing  out 
a  Warrant,  and  taking  Plaintiff  into  custody  for  a  Felony, 
Defendant  may  give  in  Evidence  a  Felony  committed ; 
that  the  Defendant  was  seen  near  the  place  at  the  time, 
under  suspicious  circumstances  :  this  is  matter  of  parol 
Evidence.  In  fact,  the  Defendant  may  give  every  thing 
in  Evidence  which  tends  to  his  exculpation,  and  disproves 
malice  ;  and  proof  is  not  required  beyond  fair  presump- 
tion. Therefore,  the  Jury  finding  a  true  Bill  against  the 
Plaintiif,  though  he  was  afterwards  acquitted,  was  held 
to  be  proof  of  a  probable  cause. (m) 

*   »*   ' 

(*)  2  Wils.  200.  (7)  2'Esp.  N.  P.  C.  38. 

(m)  2  Esp.  Dig.  N.  P.  40. 


CHAP.  XII.]          the  Action  of  Trover.  235 


CHAPTER  Xlf. 

OF  THE  EVIDENCE  FOR  THE    PLAINTIFF    IN  THE  ACTION 
OF  TROVER. 

rn 

A  HE  leading  points  of  Evidence  indispensable  to  be 

proved  by  the  Plaintiff  in  the  Action  of  Trover  are, — 
1.  A  property  in  himself  in  the  things  for  which  the  Ac- 
tion is  brought. — And,  2.  That  the  Defendant  converted 
them  to  his  own  use,  or  refused  to  deliver  them  to  the 
Plaintiff  after  demand.  An  absolute  property  in  the  Goods 
is  not  indispensable ;  a  special  property  will  enable  the 
Person  having  it,  to  maintain  the  Action  against  a 
stranger. 

In  this  Action  more  questions  of  property  are  tried  than 
in  any  other,  in  cases  where  Parties  became  possessed  of 
property  under  particular  circumstances  :  such  as  by  sale 
without  delivery ;  by  sale  and  imperfect  delivery  where 
the  Goods  are  in  transitu  ;  by  sale  of  a  Factor  or  Agent ; 
by  sale  of  the  Sheriff;  by  pledging,  &c.  (a) 

In  settling  the  Evidence  for  the  Plaintiff,  each  of  these 
cases  must  be  attended  to. 

'a) -2  Esp.  Dig.  N.  P.  58.     1  Selk.  15, 


236  Of  the  Evidence  in  [CHAP.  XII. 

* 

1.  In  the  Case  of  a  Sale  -without  Delivery. 

If  a  man  sell  goods  to  another  who  pays  for  them,  and 
he  afterwards  refuses  to  deliver  them  upon  demand  :  upon  • 
giving  Evidence, — 1.  Of  the  sale  and  price. — 2.  Proving 
that  he  paid  for  them  ;  and,  lastly,  a  demand  from  the 
Defendant  to  have  them  delivered  to  him ;  he  will  be  en- 
titled to  a  verdict  for  their  value  at  Nisi  Prius. 

And  a  sale  by  a  Factor  or  Agent,  who  is  authorised  to 
sell,  equally  binds  the  Principal,  and  subjects  him  to  an 
Action  in  the  same  way  ;  but  the  Factor  or  Agent  should 
be  called  to  prove  his  authority  for  the  sale  on  the  De- 
fendant's account. 

The  Evidence  which  the  Defendant  may  give  in  reply 
in.  these  cases,  is  such  as  shews,  that  there  was  fraud  in 
the  purchase,  or  good  ground  for  rescinding  the  contract. 
Such  as  the  purchaser  having  stopped  payment  before  the 
Goods  reached  him,  having  given  bad  Bills  which  had 
been  refused  acceptance.  This  is  called  a  stopping  of  the 
Goods  in  tmnsitu.(b)  In  this  case,  the  Defendant  is 
bound  to  prove  the  grounds  of  his  stopping  his  Goods 
before  delivery.  Such  as  a  Docket  having  been  struck 
against  the  Plaintiff,  the  Buyer,  or  against  the  Persons 
whose  names  are  on  the  Bill  given  in  payment  for  them ; 
that  he  or  they  were  uncertificated  Bankrupts,  or  the  like. 

2.  If  the  Goods  have  been  sent  to  a  Factor  to  be  sold, 
and  he  in  place  of  selling  has  pledged  them,  (c)  the  Owner 
may  recover  them  at  once  from  the  person  who  has  got 

(6)  2  Esp.  Dig.  N.  P,  40.  (c)  2  Esp.  Dig.  N.  P.  41. 


C'H  AP.  XII.]  the  'Action  cf  Trover.  237 

them  ;  for  such  a  pledge  does  not  change  the  property  ; 
and,  to  prove  the  transaction,  the  Plaintiff' may  call  as  wit- 
nesses-either  the  Factor  himself,  or  the  person  with  whom 
he  pledged  them,  (d) 

3.  If  a  man  buys  Goods  which  have  been  stolen,  the 
Owner  may  recover  them  back  in  this  Action  from  the 
Buyer,  provided  he  has  prosecuted  the  Felon  to  convic- 
tion, (e) 

\Vhere  Trover  is  brought  to  recover  Goods  under  such 
circumstances,  the  Plaintiff  must  prove, — 1.  That  the 
Goods  were  his,  and  were  stolen  from  him. — 2.  He  must 
produce  an  examined  copy  of  the  Record  of  the  convic- 
tion of  the  Felon  for  stealing  the  Goods  claimed:  (f)  this 
is  done  by  a  witness  who  examined  the  copy  produced 
with  the  original,  or  it  may  itself  be  produced  by  the  Offi- 
cer. He  may,  lastly,  show  that  the  Defendant  was  in 
possession  of  them,  and  that  he  demanded  their  restitution. 

The  Plaintiff  must  prove  the  Defendant  to  have  been  in 
possession  of  the  Goods  when  he  demanded  them ;  for  if 
he  had  parted  with  them  before  they  were  demanded,  he 
would  not  be  liable,  (g) 

So  it  must  appear  from  the  copy  of  the  Record  pro- 
duced, that  the  prosecution  was  for  Felony  ;  (h)  for  if  it 
appears  that  it  was  for  Fraud  only,  as  by  obtaining  them 
by  false  pretences,  the  Owner  cannot  recover  them. 

(rf)  5  Term  Rep.  604.    6  East.  17.     7  East.  5. 

(e)  2  Inst.  714.     2  Esp.  Dig.  N.  P.  42. 

(/)  2  Term  Rep.  750.  (#)  2  Term  Rep.  750. 

(A)  5  Term  Rep,  175. 


238  Of  the  Evidence  in  [CHAP.  XII. 

4.  In  this  form,  of  Action,  (z)  questions  are  continually 
occurring  as  to  Bills  of  Sale  given  as  security,  or  supposed 
security  for  Debts  :  Assignments  made  for  the  benefit  of 
Creditors,  or  such  conveyances  as  are  intended  to  divest 
the  property  in  Goods  out  of  the  Party  making  them,  and 
which  are  sought  by  bondf.de  Creditors  to  be  set  aside  on 
the  ground  of  Fraud,  (k) 

A  Debtor  may  give  a  preference  to  a  bond  fide  Credi- 
tor or  Creditors,  (/)  and  if  he  under  such  circumstances 
has  taken  a  Bill  of  Sale,  Assignment,  or  Security  by  War-^ 
rant  of  Attorney  voluntarily  given,  may  stand  on  his 
rights,  on  giving  in  Evidence  that  the  debt  for  which  the 
Bill  of  Sale,  Assignment,  or  Warrant  of  Attorney  was 
given,  was  actually  and  bond  fide  due  to  him,  and  the  se- 
curity given  to  protect  it. — 2.  He  must  next  show,  that 
having  so  obtained  that  security  from  his  Debtor,  that  he 
immediately  proceeded  to  give  effect  to  it,  (m)  by  taking 
possession  of  the  property  passed  by  the  Bill  of  Sale,  or 
other  Security,  and  proceeding  to  dispose  of  it  in  due  time, 
or  by  entering  up  Judgment  on  the  Warrant  of  Attorney 
immediately. 

This  Evidence  is  given  by  showing  how  the  debt  was 
contracted ;  as  by  Bond,  Bill,  Note,  or  for  Goods  sold. 
The  fact  of  entering  and  taking  possession  may  be  proved 
by  the  person  put  into  possession,  and  the  signing  of  the 
Judgment  and  Execution  as  before -mentioned  in  similar 
cases. 

(i)  2  Esp.  Dig.  N.  P.  43.  (A-)  Statute  13  Eliz.  Cl.  5. 

(/)  5  Term  Rep.  236.  (m)  s  Term  Rep.  420, 


C H  A  p .  XI I.]  the  Action  of  Trover.  23 9 

To  give  effect  to  these  securities,  if  the  validity  of  them 
is  impeached,  (n)  the  Party  who  relies  on  them,  whether 
he  is  Plaintiff  or  Defendant,  must  be  prepared  to  prove  an 
actual  and  bondjide  taking  possession  of  the  effects  under 
the  Bill  of  Sale  or  Assignment ;  (o)  for  which  purpose  the 
best  witness  is  the  person  put  into  actual  possession,  and 
he  must  prove,  that  from  the  time  of  his  taking  posses- 
sion the  original  Owner  was  suffered  to  exercise  no  act  of 
Ownership  whatever ;  for  if  he  did,  as  it  would  be  incom- 
patible with  the  supposed  assignment  of  all  his  property, 
it  would  defeat  it. 

So  it  is  always  adviseable  that  this  person  so  put  into 
possession  should  be  a  stranger ;  for  to  give  possession  to 
one  of  the  Party's  own  family,  as  to  his  Son,  for  example, 
so  that  things  would  appear  to  go  on  as  before,  it  is  a  very 
suspicious  circumstance. 

Of  the  Evidence  for  the  Defendant  in  Cases  of  Bills  of 
Sale,  or  such  Securities. 

Where  Fraud  is  imputed  in  the  possession  of  Goods, 
as  set  up  to  defeat  the  claims  of  bond  fide  Creditors,  on 
the  ground  that  they  really  belong  to  the  person  who  has 
parted  with  the  possession  of  them,  the  Evidence  which 
the  Defendant  may  bring  forward  to  meet  it  must  be 
attended  to. 

1.  The  Defendant  may  show  a  settlement  made  before 

(TO)  2  Esp.  Dig.  N.  P.  43. 

(o)  Twyne's  Case,  3  Co.  80.  1  Esp.  N.  P.  C.  205.  2  Term  Rep. 
594*  9  Term  Rep.  587. 


240  Of  the  Evidence  in          [CHAP.  XIP 

marriage  of  all  his  household  and  other  effects,  (p)  and 
that  he  has  continued  in  consequence  in  possession ;  but 
that  the  effects  were  really  at  the  time  conveyed  to  the 
Trustees,  to  whom,  as  Trustees,  they  belong.  To  esta- 
blish this  he  must  produce  his  settlement,  and  prove  the 
,  execution  of  it  by  the  subscribing  witness.  He  should 
also  prove  the  time  that  the  marriage  took  place  ;  if  the 
settlement  was  before  marriage,  it  is  a  complete  answer  to 
any  supposed  Fraud ;  if  it  was  after  marriage,  the  De- 
fendant must  prove  a  portion  paid  in  pursuance  of  prior 
articles  :  for  a  voluntary  settlement  wanting  that  circum- 
stance would  be  void  as  against  Creditors,  (g) 

5.  Questions  respecting  the  property  under  Bankruptcy 
occur  in  this  Action  more  frequently  than  in  any  other. 
The  Evidence  required  in  support  of  the  Commission  has 
been  treated  of  before  in  the  Chapter  of  Assumpsit ;  they 
are  necessary  to  be  proved  in  all  cases  in  which  the  As- 
signees are  Parties ;  but  the  question  as  to  what  is,  or  is 
not,  to  be  taken  to  be  property  belonging  to  the  Bankrupt's 
Estate  is  here  to  be  considered. 

This  question  arises,  for  the  most  part,  under  the  Sta- 
tute 21  Jac.  I.  c.  19,  (r)  whereby  Goods  and  Chattels 
whereof  the  Bankrupt  at  the  time  of  his  Bankruptcy  had 
the  possession,  order,  or  disposition  by  consent  and  per- 
mission of  the  true  Owner,  and  hath  taken  on  himself  the 
sole  alteration  and  disposition  as  Owner,  shall  belong  to 
the  Assignees,  and  be  deemed  part  of  the  Bankrupt's 
Estate. 

(/O  Cowp.  32.    2  Term  Rep.  597. 

(y)  2  Esp.  Dig.  N.  P.  45.  (r}  2  Esp.  Dig.  N.  P.  72. 


CHAP.  XII.]  the  Action  of  Trover.  241 

This  Action  is,  as  far  as  respects  the  Statute,  to  try 
how  far  thp  Assignees  are  entitled  to  Goods  and  Chattels 
which  actually  belong  to  other  Persons,  ($)  but  over  which 
the  Bankrupt  having  exercised  a  right  of  disposition,  they 
are  deemed  to  be  his,  and  to  pass  to  the  Assignees. 

When,  therefore,  the  question  arises  between  the  As- 
signees and  the  real  Owners  of  the  property  to  which  the 
former  claimed  title,  it  is  matter  of  Evidence  with  which 
the  Assignees  must  be  prepared  ;  namely,  what  acts  the 
Bankrupt  has  done,  apparently  of  Ownership,  or  how  the 
Goods  have  been  under  his  care  with  an  apparent  power 
of  disposition :  as  if  they  made  part  of  his  Stock  in  Trade* 
or  were  sold  in  the  course  of  it ;  that  can  be  proved  by 
persons  employed  in  his  Shop  or  Warehouse,  and  clearly 
binds  the  property.  So  if  the  Bankrupt  had  mortgaged 
his  Stock  in  Trade,  and  the  Mortgagee  had  suffered  him 
to  remain  in  possession,  (t)  and  he  becomes  Bankrupt, 
the  Mortgagee  has  lost  his  title  to  it,  by  having  suffered 
the  Bankrupt  to  keep  the  possession. 

Of  the  Evidence  for  the  Defendant  in  cases  of  Bankruptcy. 

Questions  of  Evidence,  under  this  head,  are  of  much 
importance  to  be  considered,  as  affording  a  defence  to  the 
claims  of  the  Assignees ;  by  showing  in  Evidence  that 
the  apparent  possession  of  the  Bankrupt  is  not  such  as  the 
Statute  contemplates  ;  and,  therefore,  furnishes  matter  of 
defence  against  them. 

These  matters  of  defence  are  several ;  as — 

(s)9  East.  215.     1  Bos.  Sc  Pull.N.  R.  67, 
(0  1  Wils.  260. 

H  h 


242  Of  the  Evidence  in          [CHAP.  XII. 

1.  The  Defendant  may  show,  (u)  that  although  the 
Goods  claimed,  made  part  of  the  Bankrupt's  Stock  in 
Trade,  that  he  was  a  Factor  only,  and  had  the  Goods  to 
sell  for  the  Owner,  and  whose  property  they  were.  In 
this  case,  the  Defendent  must  give  in  Evidence,  and 
prove  the  Goods  to  be  his  :  that  they  were  sent  to  him, 
the  Bankrupt,  as  a  Factor  in  that  way  of  trade,  for  sale 
only.  For  that  is  not  such  an  order  or  power  of  disposal 
as  the  law  contemplates. 

2.  He  may  show,  that  the  Goods  came  to  him  in  the 
character  of  an  Executor  or  Administrator  ;(x)  in  that  case, 
he  must  give  in  Evidence  the  Probate  of  the  Will,  or  let- 
ters of  Administration  to  the  person  deceased,    whose 
Goods  he  must  prove  those  claimed  by  the  Assignees  to 
have  been. 

3.  He  may  give  in  Evidence,^)  that  the  Goods  were 
lodged  with  him  only  for  a  temporary  purpose,  as  to  be 
warehoused  till  they  were  shipped,  by  showing  in  Evi- 
dence, by  a  witness  who  knew  the  fact  to  be  that  they 
were  so  left  with  him  for  that  purpose,  (z) 

4.  That  the  Bankrupt  had  been    employed  on  the 
Goods  with  power  only  to  work  on  them.(c) 

2.  Of  the  Evidence  for  the  Plaintiff  in  Trover,  as  it  res- 
pects the  Person. 

It  has  been  already  observed  ante  234,  that  a  special 

(«)  2  Esp.  Dig.  N.  P.  77.     3  P.  Wm.  185. 

(#)  I  Atk.  158.  (y)  2  Esp.  Dig.  N.  P.  74. 

(z)  l  Atk.  185.  (c)  3  Term  Rep..  316. 


CHAP.  XII.]         the  Action  of  Trover. 

property  in  the  Goods  entitles  the  Plaintiff  to  maintain 
Trover.     The  principal  cases  which  occur  are — 

1.  A  Carrier  to  whom  Goods  of  others  are  entrusted 
to  be  carried,  (6)  if  they  are  tortiously  taken  from  him, 
may  maintain  this  Action  in  his  own  name ;  but  he  must 
prove  that  he  is  a  Carrier,  or  entrusted  to  carry  the  Goods 
in  question,  and  that  they  were  taken  while  they  were  in 
his  custody. 

2.  The  Sheriff  who  has  taken  Goods  under  a  writ  of 
fieri facias,(c}  if  any  person  tortiously  takes  them  away, 

may  have  Trover  for  them.  He  must  prove  the  Writ  of 
Ji.  fa.  directed  to  him,  by  an  examined  copy  of  it :  the 
making  out  of  his  Warrant  to  a  particular  Officer  who 
seized  the  Goods,  and  was  in  possession  when  the 
Defendant  either  took  them,  or  got  possession  of  them, 
and  refused  to  deliver  them  after  demand. 

3.  The  Lord  of  the  Manor  may  have  Trover  for  an 
Estray  taken  on  his  Manor ;  and  that,  during  the  year  and 
day,   against  a  stranger  who  has  wrongfully  possessed 
himself  of  it,  and  refused  to  deliver  it  up.     But  the  Plain- 
tiff must  show  that  he  is  Lord  of  the  Manor,  and  that  the 
animal  came  on  the  Manor  as  an  Estray  ;  that  as  such,  it 
had  been  taken  and  impounded,  and  was  in  his  rightful 
possession  when  taken. (d] 

4.  A  Tenant  of  a  House,  let  with  any  moveables  be- 
longing to  it,  if  it  is  blown  down  during  the  term,  and  a 
stranger  takes  away  any  of  the  moveables  or  timber  which 

(£)  2  Esp.  Dig.  N.  P. 83.     1  Mod.  31.     (c)  1  Lev.  282. 
(d)  Bull.  X.  P 


244  Of  the  Evidence  in  [CHAP.  XII. 

belong  to  the  house,  and  refuses  to  redeliver  them,  may 
maintain  Trover  for  them,  though  the  ultimate  property 
is  in  the  Reversioner.  But  he  must  show,  at  the  Trial,  that 
he  was  Tenant,  and  intitled  to  them  ;  by  what  means  the 
Defendant  got  possession  of  them  ;  and  a  demand  on  him 
to  restore  them,  and  his  refusal. 

5,  In  the  cases  now  put,  the  Plaintiff  had  a  special  pro- 
perty in  the  things,  but  possession  alone  is  good  against  a 
mere  stranger ;  as—- 

A  person  who  finds  any  thing  by  accident,  acquires 
thereby  such  a  property  in  it  by  reason  of  the  possession, 
that  if  it  is  taken  away  from  him  by  any  one  except  the 
Owner,  he  can  maintain  Trover,  for  he  thereby  acquires 
a  special  property  in  it  against  all  the  world  but  the  right- 
ful Owner,  (e) 

So  if  a  man  even  tortiously  becomes  possessed,(y)  as 
by  having  wrongfully  cut  property  growing  on  a  Com- 
mon, yet  he  may  maintain  Trover  for  it  against  a  stranger 
who  has  taken  it  away ;  and  in  these  cases  last  put,  the 
Plaintiff  may  rely  only  on  his  having  the  possession  :  for 
as  against  a  stranger  he  is  never  called  upon  to  prove 
more  than  the  possession  of  the  Goods  :  it  is  yet  always 
adviseable  to  be  prepared  in  such  cases  with  Evidence  of 
the  property,  and  to  show  how  it  was  acquired. 

6.  Executors  or  Administrators  may  maintain  this  Ac- 
tion for  Goods  taken  and  converted  in  the  lifetime  of  the 
Testator,  (g)  or  in  their  own  time.     In  which  case,  the 

0)  I  Stra!  505.  (/)  3  Wils.  332. 

£^)  2  Esp.  Dig.  N.  P.  83-  Cro,  El.  377.  1  Stra.  60. 


CHAP.  XIL]  the  Action  of  Trover.  245 

Plaintiff  must  prove  that  the  Goods  belonged  to  the  Tes- 
tator or  Intestate  ;  that  the  Defendant  wrongfully  became 
possessed  of  them ;  that  a  demand  was  made  of  them  by 
the  Testator  in  his  lifetime,  or  by  the  Executor  or  Admin- 
istrator after  his  death,  and  a  refusal  or  non- deli  very  of 
them. 

7.  Husband  and  Wife  may  join  in  this  Action  for  Goods 
which  were  the  property  of  the  Wife  before  marriage,(/z) 
and  before  that  time  came  to  Defendant's  possession,  and 
which  he  refused  to  redeliver.  The  Plaintiff  in  this  case 
must  prove  their  marriage  ;  that  the  Goods  belonged  to 
the  Wife  before  marriage,  and  were  in  Defendant's  pos- 
session without  any  right  to  them  being  demanded,  and 
refused. 

3.  Of  the  general  points  of  Evidence  required  in  all  cases 
on  the  part  of  the  Plaintiff. 

« 

It  has  been  observed,  ante,  page  234,  that  the  Plaintiff 
is  bound  to  prove. 

1.  Property,  either  actual  or  special. 

Actual  property  is  proved  by  Witnesses,  who  know  the 
things  for  which  the  Action  is  brought  to  have  been  the 
Plaintiff's,  as  in  Trover  for  a  Horse,  that  the  Plaintiff 
bred  him,  or  has  had  him  long,  and  used  or  rode  him. 
This  Evidence  is  rarely  required,  except  where  the  pro- 
perty is  contested  by  the  Defendant,  as  in  the  case  just 
mentioned,  the  Defendant  may  claim  the  Horse  as  his 

(A)  2  Lev.  107.  1  Vent.  260. 


246  Of  the  Evidence  in  [C  HA  p.  XII. 

own,  and  give  Evidence  by  marks,  or  otherwise,  by  Wit- 
nesses, that  the  Horse  was  his  :  in  such  case  the  Action 
turns  solely  on  the  property,  as  it  is  question  of  Evidence 
for  the  jury. 

Evidence  as  to  special  property  has  been  already  men- 
tioned. 

2.  The  Plaintiff  must  show  that  the  goods  were,  when 
taken,  in  his  actual  possession,  or  had  been  so  previous  to 
it ;  and  that  at  the  time,  as  well  as  when  demanded,  he 
had  a  right  of  actual  possession ;  for  a  right  of  future  pos- 
session will  not  support  the  Action. 

Thus,  if  the  Plaintiff  's  Horse  had  strayed  and  got  into 
Defendant's  possession,  who  refused  to  deliver  him,  the 
Plaintiff  having  an  immediate  right  to  the  possession  of 
his  horse,  may  maintain  Trover  for  him,  and  then  by 
giving  Evidence  at  the  Trial,  that  he  was  possessed  of  the 
horse  before  he  strayed :  that  the  horse  was  found  in  De- 
fendant's possession,  who  refused  to  deliver  him  up  on 
demand,  the  Plaintiff  will  have  a  verdict. 

But  if  the  Plaintiff  had  hired  out  the  horse  to  the  De- 
fendant for  a  month,  e.  g.  to  do  certain  work,  and  before 
the  month  expired  he  demanded  the  horse,  and  being  re- 
fused, brought  an  Action  of  Trover  :  he  would  not  reco- 
ver, for  he  had  no  right  to  the  present  possession  of  him. 

8.  The  Plaintiff  must  prove  the  Defendant  to  have  been 
in  possession  of  the  things  for  which  the  Action  is  brought 
at  the  time  they  were  demanded,  or  at  some  time  previ- 
ous to  it ;  all  which  may  be  done  by  a  Witness,  who  saw 


CHAP.  XII.]  the  Action  of  Trover.  247 

them  in  Defendant's  possession,  or  who  knows  of  a  pre- 
vious delivery  of  them  by  the  Plaintiff  to  the  Defendant : 
but  the  Plaintiff  is  not  required  to  show  how  the  Defend- 
ant became  possessed  of  them,  as  he  might  have  taken 
them  tortiously ;  and  though  he  may  have  done  so,  yet 
the  Plaintiff  may  consider  that  he  came  by  them  lawfully, 
or  by  finding,  in  the  words  of  the  Declaration,  and  pro- 
ceed for  the  conversion,  after  demanding  them. 

4.  The  Plaintiff'  should,  in  every  case  before  the  Action 
brought,(i)  make  a  demand  of  the  Defendant  to  deliver  to 
him  those  things  for  which  the  Action  is  brought,  or  to 
pay  the  value  of  them,  or  make  satisfaction. (A*)  This  may 
be  either  in  writing,  or  by  a  Witness  duly  authorized  by 
the  Plaintiff,  or  by  the  Plaintiff  himself.  If  it  was  in 
writing  the  Plaintiff  should  keep  a  copy  of  that  delivered 
to  the  Defendant,(/)  and  give  notice  to  the  Defendant  to 
produce  at  the  Trial  that  served  upon  him ;  and  in  case 
he  does  not,  he  must  prove  by  a  Witness  that  the  copy 
produced  of  the  Demand  was  compared  by  him,  and  is  a 
copy  of  that  served  on  the  Defendant. 

If  the  demand  was  made  by  a  Person  authorized  by  the 
Plaintiff  to  make  it,  that  Person  should  be  called  to  prove 
it. 

If  it  was  made  by  the  Plaintiff  himself,  a  Witness 
should  be  called  at  the  Trial,  who  was  present,  and  heard 
the  Plaintiff  make  the  demand. 

But  though  I  have  laid  down  the  Rule  thus  generally, 

(0  2  H.  Black.  135.  (*)  2  Esp.  Dig.  N.  P.  31. 

(/)2  Esp.  Dig.  N.  P.  22. 


248  Of  the  Evidence  in  [CHAP.  XIL 

and  advise  in  every  case  a  demand  to  be  made,  if  in  fact 
the  Plaintiff  can  prove  an  actual  tortious  taking,(w)  or  an 
actual  conversion  of  the  goods,  such  as  a  sale  of  them  to  a 
third  person,  that  Evidence  will  be  sufficient  without  proof 
of  any  demand.  But  there  is  more  facility  in  proving  a 
demand,  than  proving  an  actual  conversion. 

2.  It  is  also  laid  down,  ante  234,  as  a  settled  principle 
of  the  Action  of  Trover,  that  the  Plaintiff  must  prove  a 
conversion  by  the  Defendant  of  the  things  for  which  the 
Action  is  brought ;  and  the  words  of  the  Declaration  are 
"  converted  them  to  his  own  use :"  and  all  the  books 
speak  of  a  demand  and  refusal  as  Evidence  of  that  con- 
version ;  this  requires  explanation  in  settling  the  Evidence 
for  the  Plaintiff. 

1.  It  is  not  necessary  for  the  Plaintiff  to  show  a  refusal 
in  terms  by  the  Defendant,  to  deliver  the  goods.  It  is 
sufficient  to  prove  a  demand  and  an  omission  by  the  De- 
fendant to  deliver  them  before  Action  brought.  An  ab- 
solute refusal  by  the  Defendant  to  deliver  them  is  fully 
sufficient  Evidence  of  a  conversion ;  but  the  Defendant 
may  assign  a  sufficient  reason  for  not  doing  it,(w)  which 
will  negative  the  conversion,  as,  ex.  gr.  that  he  keeps  the 
goods  for  the  right  owner,  whom  he  does  not  know  the 
Plaintiff  to  be.  So  if  he  claims  a  lien  on  them,  the  Plain- 
tiff should  in  such  case,  therefore,  go  further,  and  prove 
that  the  Defendant  absolutely  disputed  his  right  to  them. 

It  is  not  necessary  for  the  Plaintiff  to  show  that  he  has 

(TH)  Sid.  254. 

(«)  Esp.  N.  P.  C.  83,    3  Campb.  2 15, 2  Esp.  Dig.  N.  P.  96. 


CHAP.  XII.]  the  Action  of  Trover.  249 

absolutely  lost  his  goods,  and  which  the  Defendant  has 
taken  :(o)  the  Defendant  by  wrongfully  taking  the  goods 
for  a  time ,  or  partially  using  them,  is  guilty  of  a  conver- 
sion pro  tanto  ;  as,  ex.  gr.  if  a  man  takes  another's  horse, 
and  rides  him,  though  he  afterwards  brings  him  back,  the 
owner  may  still  maintain  Trover,  on  proving  at  the  Trial 
such  taking,  and  though  he  will  not  recover  the  value  of 
the  horse,  he  will  recover  damages  for  the  use  of  him.(/>) 

If  a  Person  (q)  entrusted  to  carry  a  cask  of  liquor,  draws 
off  part,  and  fills  it  up  with  water,  it  is  a  conversion  of  the 
whole,  and  may  be  so  declared;  and,  being  proved,  the 
whole  value  of  the  cask  may  be  recovered. 

So  a  delivery  at  a  place,  or  to  a  person,  contrary  to  the 
owner's  orders,  is  a  conversion  in  the  Person  who  has 
done  it.(r) 

Of  the  general  Evidence  in  this  Diction  on  the  part  of  the 
Defendant. 

The  Evidence  on  the  part  of  the  Defendant,  is  either  a 
denial  or  disproval  of  the  Plaintiff's  right  to  maintain  the 
action,  or  the  assertion  of  a  right  in  himself  to  retain  the 
things  for  which  the  Action  is  brought. 

The  only  Plea  in  Trover  is  Not  guilty,  under  which  the 
Defendant  may  go  into  any  defence  he  has. 

1.  The  Defendant(-s)  may  show  that  though  the  pro- 
Co)  2  Esp.  Dig.  N.  P.  87.          (A)  Golds.  155. 
(?)  1  Stra.  576.  (r)  4  Term  Rep.  460. 

(«)  2  Esp.  Dig.  N.  P.  82. 


250  Of  the  Evidence  in          [CHAP  XII. 

perty  of  the  goods  is  in  the  Plaintiff,  he  had  no  right  of 
present  possession.  As,  ex.  gr.  if  a  landlord  had  let  a 
house,  ready  furnished,  for  a  year ;(?)  and  before  the  ex- 
piration of  the  year  brought  Trover  for  the  furniture,  the 
Action  would  not  lie. 

In  that  case,  the  Defendant  should  give  in  Evidence  the 
terms  upon  which  he  had  the  goods,  and  thereby  show  an 
existing  right  of  possession  in  himself. 

2.  The  Defendant  may  dispute  the  property  of  the 
Plaintiff  in  the  goods.(w) 

As  if  goods  were  condemned  in  the  Exchequer,(o?)  the 
property  is  thereby  completely  divested  out  of  the  owner, 
so  that  he  can  maintain  no  Action  :  in  such  case,  mere- 
fore,  the  Defendant  must  give  in  Evidence  examined  co- 
pies of  the  proceedings  and  judgment  in  the  Exchequer, 
by  which  it  will  appear  that  the  goods  taken  were  those 
for  which  the  Action  was  brought,  and  that  they  were 
condemned. 

So  where  an  Exchange  is  made  of  horses,  ex.  gr.  and 
possession  given,  neither  party  can  maintain  Trover  for 
his  horse,  for  the  property  is  completely  changed  by  the 
exchange  and  delivery:  but  both  these  facts  must  be 
proved  at  the  Trial. 

3.  The  Defendant  may  show  a  property  (y]  in  himself 
in  the  thing  sued  for,  as  e.  g.  That  he  became  possessed  of 
it  by  legal  transfer,  or  by  a  sale  in  market  overt. 

(0  7  Term  Rep.  9.  («)  7  Term  Rep.  9. 

(x\  Sir  T.  Ray.  336  (t/)  2  Esp.  Dig.  N.  P.  84. 


CH  A  p.  XII.]  the  Action  of  Trover.  25 1 

As  where  a  bank-note  is  lost,  the  owner  may  have  Tro- 
ver against  the  finder  for  it.(z)  But  if  the  finder  had 
passed  it  to  another  in  the  course  of  dealing,  in  that  case 
the  latter  would  have  obtained  a  clear  title  to  it,  and  Tro- 
ver could  not  be  supported.  But,  in  that  case,  the  De- 
fendant would  be  bound  to  show  at  the  Trial  how  he 
became  possessed  of  it,  and  that  he  took  it  in  the  course 
of  business,  or  rather  was  not  himself  the  finder  of  it. 

So  if  a  horse  was  stolen,  (a)  though  selling  him  in  mar- 
ket overt,  might  change  the  property,  if  all  the  requisites 
of  statute  2  Ph.  and  M.  ch.  7.  were  complied  with,  yet,  if 
sold  by  a  false  name,  or  not  regularly  booked,  the  property 
is  not  changed,  the  sale  not  being  regular  in  market  overt. 

3.  The  Defendant  may  justify  the  detention(6)  of  the 
goods,  that  is,  a  refusal  to  deliver  them  to  the  rightful 
owner,  on  the  ground  that  he  has  a  lien  on  them  for  a  de- 
mand of  his  own. 

This  lien  being  either  in  consequence  of  an  express 
contract  between  the  parties,  or  as  arising  from  the  usage 
of  trade,  if  the  Defendant  relies  on  it,  he  must,  in  the  first 
place,  establish  by  Evidence,  the  existence  of  a  lien,  ei- 
ther by  custom  or  contract,  and,  secondly,  that  they  came 
fairly  into  his  possession  in  regular  dealing,  and  lastly,  that 
he  had  a  demand  against  the  Plaintiff,  to  a  certain  extent, 
which  attaches  on  the  Defendant's  goods  for  which  the 
Action  is  brought,  that  is,  as  connected  with  the  nature 
of  the  demand,  and  therefore  claims  a  right  to  retain  them. 

(z)  1  Salk.  126.  (a)  I  Leon.  158. 

(6)  2  Esp.  Dig.  N.  P.  87. 


252  Of  the  Evidence  in  [CHAP.  XII. 

These  matters  are  proved  by  Witnesses  acquainted 
with  the  facts :  an  agreement  for  a  lien  may  be  proved  by 
one  Witness  ;  but  the  usage  of  trade  or  a  particular  busi- 
ness should  be  proved  by  more  than  one,  if  possible,  and 
that  by  persons  who  have  known  it  acted  upon,  and  not 
merely  heard  of  it. 

Liens  have  been  recognized  in  the  following  busi- 
nesses ;  and  as  they  have  been  so  settled  by-  repeated 
decisions,  there  is  no  necessity  in  such  cases  for  the  De- 
fendant to  bring  general  Evidence  of  liens  arising  from 
such  particular  cases  in  these  particular  trades  or  busi- 
nesses. The  Defendant  may  rely  on  the  decided  usage, 
but  observing  that  in  some  there  is  a  lien  for  a  general 
balance,  in  others  not. 

1.  In  the  case  of  Factors,  they  have  a  lien  for  a  general 
balance,  (c) 

2.  Bankers,  for  a  general  balance. (of) 

3.  Wharfingers,  for  a  general  balance.(c-) 

4.  Manufacturers  of  different  descriptions  for  the  work 
done  by  themselves,  as  Dyers,  Packers,  Printers,  for  a 
general  balance.  (/*) 

5.  Pawnbrokers,  for  the  advance  on  the  goods  them- 
selves.^) 

(c)  2  Esp.  Dig.  N.  P.  8T. 

(d)  2  Burr.  936.   Cowp.  251.    2  East.  221.  3  Term  Rep.  783. 

(e)  1  Esp.  N.  P.  C.  66,  109.  9  East.  12. 

(/)  4  Burr.  2214.  6  Term  Rep.  14.  6  Atk.  627.   3  Mau.  Sc  Selw. 
168. 
(£•)  Pre.  Ch.419.  2  Vern.  691.  1  Atk.  236. 


CHAP/  XII.]  the  Action  of  Trover.  253 

6.  Innkeepers,  while  the  goods  brought  to  their  Inn 
remain  with  them  :  if  they  suffer  them  to  go  away,  the 
lien  is  lost. (h) 

7.  Carriers,  for  the  carriage  of  the  particular  goods  car- 
ried ;  not  for  a  general  demand  or  balance,  unless  agree- 
ment or  usage  is  strictly  and  fully  proved.(z) 

7.  An  Attorney,  on  all  deeds  and  papers  delivered  to 
him  by  his  Client  in  the  course  of  business,  or  which  have 
so  come  to  his  hands. (A-) 

8.  Brokers,  who  have  given  their   Acceptances  for 
Goods  which  they  are  afterwards  to  sell,  have  a  lien  on  the 
goods  to  the  extent  of  what  they  agreed  to  advance. (/) 

4.  The  Defendant,  if  he  has  rightfully  come  to  the  pos- 
session of  the  Goods,  may  show  that  he  was  not  guilty  of 
a  conversion  of  them  to  his  own  use,  which  is  necessary 
to  fix  him  in  this  Action. (m) 

As  if  Goods  are  delivered  to  a  Carrier  to  carry,  and  they 
are  lost  or  stolen ;  if  Trover  is  brought,  the  Carrier,  on 
giving  in  Evidence  at  the  Trial,  that  the  Goods  were  so 
lost  or  stolen,  the  Plaintiff  cannot  have  a  verdict ;  for  the 
Defendant  was  guilty  of  no  conversion  to  his  own  use.(w) 

5.  The  Defendant  may  show,  in  answer  to  the  Plain- 

(A)  3  Bulst.  268.    Salk.  388. 

(i)  2  Ld.  Ray.  752.    6  East.  524.     7  East.  224. 

(*)  Doug.  226.     1  Mau.  8c  Selw.  535.' 

(/)  3  Esp.  N.  P.  C.  182.          Cm)  2  Esp.  Dig.  N.  P.  C.  86. 

(»)  5  Burr.  2825. 


254  Of  the  Evidence  in  [CHAP.  XII. 

tiff's  case,  that  the  Goods  for  which  the  Action  was 
brought,  were  pawned  with  him.(o) 

For  this  purpose  he  must  give  in  Evidence  that  he  ad- 
vanced money  to  Plaintiff,  prove  the  delivery  of  the  goods 
to  him,  on  those  terms,  and  that  he  was  to  detain  the 
Goods  as  a  pledge  till  the  money  he  had  advanced  on 
them  was  repaid. 

6.  It  is  no  defence  for  the  Defendant  to  show  that  the 
Goods  did  not  come  to  his  own  use  ;  for  if  a  servant,  em- 
ployed to  receive  Goods  on  his  Master's  account,  dis- 
poses of  them  wrongfully,  whether  with  or  without  his 
Master's  orders,  the  latter  will  be  liable  in  Trover  for  the 
amount.(/>) 

7.  The  Defendant  may  show,  that  he  had  a  joint  pro- 
perty in  the  Goods,  sought  to  be  recovered  in  Trover  ;  as 
that  they  were  Tenants  in  common  of  them.(^) 

As  in  the  case  of  joint  owners  of  a  ship,  which,  if  one 
takes,  the  other  cannot  maintain  Trover  for  it ;  but  if  he 
destroys  it,  then  Trover  will  lie.(r) 

8.  The  right  of  the  Tenant  to  carry  away  the  materials 
of  any  erections  made  by  him  on  the  Land  or  Premises 
occupied  by  him,  on  the  expiration  of  his  term,  often 
raises  an  important  question  at  Nisi  Prius  :  every  erection 
fixed  to  the  freehold  prima  facie  belongs  to  the  Landlord, 
and  he  may  maintain  Trover  for  it  if  taken  away  ;  but  as 

(o)  2  Esp.  Dig.  N.  P.  C.  89. 

(A)  2  Esp.  Dig.  N.  P.  C.  92.     1  Wils.  828. 

(y)  1  Terra  Rep.  658.  (r)  Co.  Litt.  200. 


CHAP.  XII.]  the  Action  of  Trover.  255 

there  are  many  things  of  that  description,  which  the  Ten- 
ant is  warranted  in  taking  away,  he  then  should  be  pre- 
pared with  Evidence  accordingly. 

This  Tenant's  right  depends  on  the  Custom  of  the 
County,  and  on  positive  determination  of  Law.(6) 

As  if  the  custom  of  the  County  is,  that  the  Tenant  of 
a  Farm  may,  at  the  end  of  his  Term,  carry  away,  e.  g. 
the  timber  of  a  Barn  erected  on  blocks  or  timbers  lying 
on  the  ground,  that  is  a  good  custom  :  in  that  case,  the 
Defendant  must  call  Witnesses  to  prove  the  established 
and  received  usage  and  custom  of  the  County,  not  from 
opinion  or  hearing  only,  but  from  having  known  it  acted 
on ;  then  prove  that  the  erection  in  question  was  within 
the  usage.(c) 

(b)  2  Esp.  Dig.  100.  (c)  Bull.  N.  P.  54. 


256  Of  the  Evidence  in  Action,  &c.     [CHAP.  XIII. 


CHAPTER  XIII. 


OP     SETTLING    THE     EVIDENCE      IN     THE     ACTION     OF 
TRESPASS   ON   THE   CASE. 

AN  settling  the  Evidence  in  cases  of  Actions  on  the  Case, 
which  are  more  numerous  than  in  any  other  form  of  Ac- 
tion, this  general  Rule  is  to  be  observed,  and  which  in 
some  respect  varies  from  the  rules  of  Evidence  in  other 
Actions,  that  a  less  degree  of  strictness  of  proof  is  requir- 
ed :  it  being  laid  down  as  a  rule,  that  material  averments 
are  only  put  in  issue,  and  nothing  more. (a) 

It  may  be  necessary  to  exemplify  this  Rule  by  some 
examples,  which  in  similar  cases  may  be  applied. 

The  Plaintiff  declared  in  Case  for  negligence,  in  running 
down  his  Boat  near  the  Halfway  Reach  in  the  river 
Thames  ;  the  injury  was  proved  to  have  been  committed 
in  the  Halfway  Reach.  It  was  objected  to  as  a  variance, 
but  was  held  not  to  be  so,  for  the  injury  was  the  ground 
of  Action ;  and  if  that  was  proved,  it  was  immaterial 
where  it  was  committed.(6) 

So  where  the  Declaration  stated  an  injury  done  to  the 
(a)  2  W.  Blackst.  Rep.  840.  (£)  4  Term  Rep.  558. 


CHAP.  XIII.]  Action  of  Trespass  on  the  Case.          257 

Plaintiff's  House,  situate  at  Sheerness,  in  the  county  of 
Kent ;  and,  at  the  Trial,  it  appeared  that  the  House  was 
situated  at  Minster,  near  Sheerness ;  it  being  an  imma- 
terial averment  where  the  House  stood,  provided  the  inju- 
ry stated  in  the  Declaration  was  proved  to  have  been  com- 
mitted, the  variance  was  held  not  to  be  good  ground  of 
nonsuit,  (c) 

But  any  variance  in  the  Evidence  of  a  material  aver- 
ment is  fatal ;  and  that  is  material,  which  states  the  Plain- 
tiff's ground  of  complaint.  As  if  the  Plaintiff  was  to  de- 
clare for  a  disturbance  in  a  right  of  way  across  a  certain 

Close,  called  Home  Mead,  and  in  Evidence  it  appeared 
that  the  Close  over  which  he  claimed  a  right  of  way,  was 
called  Cow  Meadow,  and  that  Home  Meadwas  a  different 
Close.  As  the  Plaintiff  claimed  title  to  a  right  in  the 
wrong  Close,  his  Evidence  would  not  support  it ;  and 
being  his  title,  it  was  a  material  averment,  and  the  vari- 
ance fatal. 

The  principal  heads  of  injuries  in  this  case  are  such  as 
affect.— 1.  The  Person.— 2.  Personal  Property.— 3.  Real 
Property  ;  and,  lastly,  Personal  Rights. 

1.   Of  the  Evidence  in  Actions  on  the  case  for  Injuries  to 
the  Person. 

1.  If  the  Action  is  against  a  Surgeon  or  Apothecary,  for 
an  injury  to  the  Plaintiff's  health,  he  must  prove  that  the 
Defendant  was  a.  Surgeon  or  Apothecary  by  profession  : 
acted  as  such,  and  was  paid  or  fee'd  in  that  character : 


•»  1  Bos.  &  Pull.  225. 

K  k 


Of  the  Evidence  in  [CHAP.  XIII. 

that  he  was  employed  by  the  Plaintiff  to  cure  some  wound 
or  bodily  injury.  He  must  then  prove,  what  the  Defend- 
ant did  in  his  attendance  on  him  ;  and  then  call  persons 
of  medical  skill  and  experience  to  give  their  opinions  and 
Evidence,  that  the  course  followed  was  ignorant,  impro- 
per, and  unskilful ;  and  the  want  of  cure  of  the  Defend- 
ant's wound  or  malady  was  the  eifect  of  the  ill  treatment 
of  it.  The  protracted  illness  of  the  Defendant,  the  ex- 
pense incurred,  &c.,  are  all  matters  capable  of  proof,  and 
must  be  proved  by  a  witness. 

2.  A  Tavernkeeper  or  Publican,(d}  who  sells  bad  Wine 
or  Liquors  to  a  Customer,  by  which  his  health  is  affected, 
may  be  sued  for  damages  in  this  Action.  In  such  case 
the  Plaintiff  must  prove,  that  the  Person  who  sold  the  Li- 
quors was  an  Innkeeper,  Tavernkeeper,  or  Publican,  and 
that  his  House  was  open  for  that  purpose :  that  the  Plain- 
tiff drank  the  Wine  or  Liquors  furnished  there  to  him  by 
the  Defendant,  and  then  show  clearly  that  his  illness  pro- 
ceeded from  the  use  of  them ;  this  must  be  done  by  wit- 


nesses. 


3.  If  a  Person  keeps  a  Dog  used  to  bite,(<?)  or  other 
vicious  animal,  as  a  Bull,  e.  g.  and  a  Person  has  been  hurt 
by  either,  he  may  sustain  an  Action  for  the  injury.  In 
this  case,  it  is  indispensable  to  bring  Evidence  home  to 
the  Defendant,  the  Owner  of  the  animal,  that  he  knew 
that  it  was  vicious,  and  kept  it  after  notice.(/)  That  is 
matter  of  viva  voce  Evidence.  The  Defendant  may  de- 
fend himself  by  showing  that  the  Dog  or  Bull  were  kept 

i 

(d)  2  Esp.  Dig.  N.  P.  108. 

(e)  2  Esp.  Dig.  N.  P.  109.     1  Ld.  Raym.  606. 
(/)  Brook  v.  Copeland,  I  Esp.  N.  P.  C.  203. 


CHAP.  XIII.]     Action  of  Trespass  on  the  Case.        259 

in  proper  places ;  the  Dog  e.  g.  for  defence  of  his  Pre- 
mises, and  the  Bull  in  a  Close ;  and  that  the  hurt  the  Plain- 
tiff" received  proceeded  from  his  going  into  either  place 
where  he  had  no  business. 

2,   Of  the  Evidence  in  cases  of  injury  to  Personal  Proper- 
perty,  by  Officers  or  private  Persons. 

This  is  first  by  Officers  : — 

1.  In  Trespass  against  the  Sheriff,  it  should  be  observ- 
ed, that  he  being  by  law  answerable  for  the  acts  of  his 
Officers,  where  he  is  sued  for  any  act  of  theirs,  and  his 
name  only  appears  on  the  Record,  the  Officer  who  did 
the  wrong  must  be  connected  with  the  Sheriff,  by  show- 
ing the  Sheriff 's  Warrant  directed  to  him  to  act. — Sec 
ante,  126. 

Having  observed  that  precaution  in  settling  the  Evi- 
dence, is  necessary  in  every  case  :  the  principal  heads  of 
Action  in  this  case  are, — 1.  Against  the  Sheriff  for  Es- 
capes.— 2.  For  Informal  Executions. — 3.  For  False  Re- 
turns. 

In  the  case  of  Escapes,  I  have  already  given  the  Evi- 
dence required,  in  Debt  for  an  Escape  where  the  De- 
fendant is  in  custody  on  final  Process,  (page  126.)  The 
case  of  an  Escape  here  is,  where  there  has  been  an  Escape 
on  mesne  Process,  in  which  case  the  damages  are  uncer- 
tain. 

In  this  case,  the  Plaintiff  must  prove  the  suing  out  of 
the  Writ,  either  by  the  production  of  the  Writ  itself,  or  of 


260  Of  the  Evidence  in  the        [CHAP.  XIII. 

an  examined  copy  from  the  Treasury  when  returned.  If 
cepi  corpus  is  indorsed,  it  proves  the  arrest :  if  non  est 
inventus  is  returned,  when  in  fact  the  Defendant  was  ar- 
rested, there  are  two  Counts  always  laid  in  the  Declara- 
tion, the  one  for  an  Escape,  the  other  for  a  false  Return  ; 
and  where  that  is  so,  the  Plaintiff,  to  fix  the  Sheriff,  must 
show  that  a  Warrant  was  made  out  by  the  Sheriff  to  one 
of  his  Officers ;  that  that  Officer  was  seen  to  arrest,  or 
have  the  Defendant  in  his  actual  custody :  and  that  he 
was  afterwards  seen  at  large. 

It  is  indispensable  for  the  Plaintiff,  if  he  goes  for  an  Es- 
cape, to  prove  that  the  Defendant  in  the  original  Action 
was  in  the  custody  of  the  Officer,  who  had  the  Writ 
against  him,  and  to  whom  the  Warrant  was  directed.  If 
the  Defendant  was  seen  openly  and  at  large  after  the  de- 
livery of  the  Writ  to  the  Sheriff,  and  a  Warrant  granted 
on  it,  unless  an  actual  arrest  took  place  by  that  Officer,  an 
Action  for  an  Escape  will  not  lie  :  the  form  of  Action 
then  is,  Case  against  the  Sheriff  for  negligence  in  not  ar- 
resting the  Defendant ;  but,  to  subject  the  Sheriff  in  that 
case,  Evidence  must  be  given  by  the  Plaintiff  that  he  in- 
formed the  Sheriff's  Officer  where  the  Defendant  could 
be  found,  or  pointed  him  out  to  him,  notwithstanding  which 
he  neglected  to  make  his  caption. 

But  the  mere  fact  of  the  Defendant  being  seen  at  large 
will  not  subject  the  Sheriff  to  an  Action  for  an  Escape,  as 
he  is  bound,  if  sufficient  Bail  is  offered,  to  let  the  Defend- 
ant remain  at  large  until  the  return  of  the  Writ.  The 
Plaintiff  must,  therefore,  wait  until  the  return  of  the  Writ ; 
and  if  no  Bail  Bond  has  been  taken,  or  Bail  above  put  in, 
or  the  Defendant  surrendered,  the  Action  will  lie.  In 


CHAP.  XIIL]     Action  of  Trespass  on  the  Case.          261 

settling  the  Evidence,  therefore,  it  will  be  necessary  to  see 
if  any  of  these  matters  have  taken  place ;  and,  if  they 
have,  the  Action  will  not  lie. 

The  Evidence  for  the  Defendant,  the  Sheriff,  in  this  parti- 
cular case,  should  be  attended  to. 

What  is  just  now  stated,  on  being  given  in  Evidence 
by  the  Sheriff,  is  matter  of  defence  for  him. 

But  he  may  give  other  matters  in  Evidence — as,  he 
may  show  that  the  Defendant,  when  in  custody  on  mesne 
Process,  was  rescued.(g]  This  must  be  circumstantially 
proved  by  a  witness  who  saw  the  circumstances,  and  can 
prove  the  violence  used  to  the  Officer,  in  consequence  of 
which  he  was  forced  to  give  up  the  Person  arrested. 

2.  Another  ground  of  this  Action,  against  the  Sheriff, 
is  for  some  irregularity  in  executing  a  Writ  of  fi.  fa. 
This  may  be  by  the  Landlord  of  the  Defendant  in  the 
original  Action  ;(/z)  where  the  Sheriff  has  neglected  to  re- 
serve a  yearns  rent,  he  having  had  notice  that  so  much  was 
in  arrear  to  him  :  for  that  purpose  he  should  show,  that 
the  Defendant  in  the  Action  was  his  Tenant ;  that  there 
was  so  much  in  arrear  of  rent ;  that  he  gave  notice  to  that 
effect  to  the  Sheriff.  This  last  should  be  proved  by  a 
written  notice  served  on  the  Sheriff  which  he  should 
have  notice  to  produce ;  and  a  witness  should  then 
prove  a  copy  compared  with  that  served,  and  then  prove 
the  sale  of  the  effects  by  the  Sheriff. 

So  the  Sheriff  may  be  liable  in  this  Action,  at  the  suit 
(g}  Cro.  Jac.  409.  (/»)  Stat.  8  Ann.  c.  14.  1  Stra.  92,  212. 


262  Of  the  Evidence  in  the        [CHAP.  XIII. 

of  the  Defendant,  for  misconduct  in  the  sale  of  his  effects, 
and  for  not  returning  him  the  overplus  after  all  due  al- 
lowances.^') 

As  if  he  sold  effects  of  the  Defendant  for  51.  which  the 
Defendant  proves  were  worth  a  much  larger  sum,  or  in 
an  improper  way.  If  the  Party  proves  these  facts  by 
witnesses,  the  Sheriff  will  be  liable.  So  if  he  charges  any 
deductions  ;  as  for  rent  paid  to  the  Landlord  :  he  must 
prove  the  payment,  and  the  Landlord  cannot  be  a  witness 
to  prove  it.  He  is,  therefore,  bound  to  prove  the  tenancy 
and  rent  in  arrear,  as  in  the  case  last  mentioned. 

3.  So  if  the  Sheriff  executes  first,  a  Writ  delivered  to 
him  subsequent  to  one  before  in  his  hands,  he  will  be  liable 
in  this  Action. (k)  In  that  case,  the  Plaintiff  must  prove 
the  first  Writ  by  production  of  it,  or  by  an  examined  copy 
if  returned.  He  must  also  show  the  time  when  it  was 
delivered  to  the  Sheriff.  He  must  then  give  in  Evidence, 
that  there  were  Goods  of  the  Defendant's  on  the  Premi- 
ses when  he  delivered  the  Writ  to  the  Sheriff,  and  which 
he  either  has  not  levied  on,  or  returned  nulla  bona  to  the 
Writ  offi.fa.  so  first  delivered  to  him. 

This  question  is  raised  in  an  Action  against  the  Sheriff 
for  a  false  return  ;  therefore,  where  he  has  returned  nulla 
bona,  the  Plaintiff,  by  giving  the  Evidence  just  mentioned, 
falsifies  the  return.(/) 

Under  this  head,  questions  of  property  in  Goods  taken 

(i)  3  Campb.  524.  (*)  Salk.  320. 

(/)  1  Wils.  ,44. 


CHAP.  XIII.]     Action  of  Trespass  on  the  Case.         263 

are  tried  ;  for  as  the  Sheriff  is  liable  in  Trespass  for  levy- 
ing on  Goods  under  theji.fa.  not  the  property  of  the  De- 
fendant in  the  Action,  and  that  property  is  often  doubtful ; 
if  he  is  either  indemnified,  or  takes  upon  himself  to  decide 
between  two  claimants,  in  whom  the  actual  property  is, 
and  makes  his  return  accordingly,  and  the  other  Party 
chooses  to  contest  it,  he  does  it  in  an  Action  for  a  false 
return.  In  that  case,  the  whole  of  the  case  will  depend 
on  proof  of  actual  property,  which  is  matter  of  fact  to 
whom  the  Goods  really  belong. 

2.  For  any  breach  or  neglect  of  his  duty,  this  Action 
lies  against  an  Attorney. (m} 

As,  ex.  gr.  if  the  Attorney  neglects  to  charge  a  De- 
fendant in  execution  in  due  time,  by  reason  of  which  he 
is  superseded,(w)  the  Action  will  lie  against  the  Attorney 
for  his  neglect.  The  Evidence  in  that  case  would  be, 
the  retainer  of  the  Defendant  as  Plaintiff's  Attorney  ;  that 
the  Defendant  in  the  original  Action  had  been  arrested 
or  taken  in  execution  at  his  suit,  and  committed  to  Pri- 
son :  this  is  proved  by  the  books  from  the  Fleet,  the 
King's  Bench,  or  other  Prison  where  the  Defendant  was 
in  custody ;  by  that  Evidence  too  the  actual  time  of  his 
committal  will  appear.  The  Officers  from  the  same  Pri- 
son will  produce  the  supersedeas,  or  order  for  his  dis- 
charge, which  will  also  show  the  grounds  of  it,  that  is  in 
the  present  case,  by  reason  of  the  Defendant  not  being 
charged  in  execution  within  three  Terms  according  to  the 
practice  of  the  Court.  If  the  Plaintiff  has  suffered  from 
the  discharge  of  the  Defendant  in  losing  his  Debt,  and  it 

(m)  2  Esp.  Dig.  N.  P.  122.         («)  2  Wils.  325.  4  Burr.  2060, 


264  Of  the  Evidence  in  the        [CHAP.  XIII. 

is  so  laid  in  the  Declaration,  he  may  give  that  in  Evi- 
dence of  his  damages^ 

The  Evidence  must  necessarily  vary  according  to  the 
different  cases  of  neglect  by  the  Attorney,  and  be  settled 
accordingly.  As  if,  in  a  purchase,  the  Attorney  takes 
upon  himself  to  decide  upon  the  validity  of  the  title,  and 
it  turns  out  to  be  bad,  or  neglects  to  do  what  is  necessary 
to  complete  it,  in  consequence  of  which  his  client  loses 
his  money,  the  Attorney  will  be  liable  :  in  that  case,  the 
Plaintiff  must  prove  that  he  employed  the  Defendant :  that 
he  prepared  the  conveyances  which  must  be  produced 
and  proved.  The  receipt  on  the  back,  proves  the  pay- 
ment of  the  money  on  proving  the  Party's  hand-writing 
to  the  receipt.  He  must  then  prove  that  he  lost  the  bene- 
fit of  his  purchase,  if  Lands  or  Tenements,  by  showing  a 
recovery  against  him,  or  eviction,  by  a  Person  having 
title,  as  a  judgment  in  Ejectment,  ex.  gr.  against  him, 
which  should  be  produced  and  proved:  if  the  neglect 
was  of  something  necessary  to  complete  the  conveyance ; 
as  neglecting  to  have  a  proper  memorial  of  an  annuity  by 
reason  of  which  the  Court  set  it  aside,  the  rule  of  Court 
so  ordering  it  should  be  produced,  and  also  an  examined 
copy  from  the  Office  of  the  Clerk  of  the  Rules,  which 
states  the  ground  of  objection  to  the  validity  of  the  annui- 
ty, by  reason  of  which  it  was  set  aside. 

3.  Justices  of  Peace  are  liable  in  this  Action  for  cer- 
tain breaches  of  their  duty  ;(o)  as  if  he  refuses  Bail  when 

(o)2Esp.  Dig.  N.  P.  124. 


CHAP.  XIII.]    Action  of  Trespass  on  the  Case.          265 

offered,  and  where  it  ought  to  be  taken.  In  such  case, 
the  offence  for  which  the  Party  was  in  custody,  is  proved 
by  a  copy  of  the  committal  to  Prison,  and  then  the  offer 
of  Bail  to  him  must  be  proved  by  the  Person  who  did  it. 

It  has  been  before  observed,(/>)  that  where  a  convic- 
tion of  a  Justice  has  been  quashed,  and  he  being  liable  in 
damages  for  any  injury  which  the  Party  has  suffered  in 
consequence  of  it,  that  by  Statute.  43  Geo.  III.  c.  145. 
the  form  of  Action  must  be  Case.  Where  it  is  so  brought 
to  support  the  Action,  the  Plaintiff  must  prove  express 
malice  in  the  Defendant.  This  may  be  done  by  ex.  gr. 
proving  oppressive  acts  done  by  the  Justice  ;  declarations 
of  enmity  to  the  Plaintiff  made  by  him  to  others.  On  the 
other  hand,  the  Justice  may  show  that  he  had  good  ground 
for  his  Proceedings,  by  calling  the  witness  on  whose  tes- 
timony he  was  convicted,  and  so  rebut  the  presumption  of 
malice. 

4.  Actions  against  Carriers,  for  negligence,  are  brought 
in  this  form  of  Action,  though  they  may  also  be  sued  hi 
Assumpsit. 

Carriers  being  liable  for  the  loss  of  all  Goods  entrusted 
to  be  carried  by  them,(y)  unless  the  loss  has  happened 
from  the  act  of  God,  or  the  King's  enemies ;  from  the  de- 
fault of  the  Party  sending  them ;  or  by  reason  of  a  notice 
given  by  the  Carrier  of  his  non-responsibility  under  parti- 
cular circumstances  ;  in  all  cases,  the  Plaintiff  must  prove, 
that  the  Defendant  was  a  common  Carrier,  either  by  land 
or  water,  announcing  himself  to  the  world  as  such,  or  that 

(/O  Vicl,  Ch,  of  Trespass.  '</)  2  Esp,  Dig.  N,  P.  125, 


266  Of  the  Evidence  in  the          [CHAP.  XIII. 

he  expressly  undertook  to  carry  the  things  for  hire  :  these 
facts  are  matter  of  parol  Evidence.  He  must  next  prove 
the  delivery  to  the  Carrier,  either  in  person,  or  to  the  ser- 
vant regularly  employed  by  him  in  the  business,  or  at  the 
House,  Inn,  or  Wharf,  where  he  was  in  the  habit  of  re- 
ceiving Goods,  or  where  he  advertised  or  notified  that 
Goods  were  to  be  left  or  received.  This  must  be  done 
by  the  witness  who  left  them  or  delivered  them  ;  and  he 
must  say  where  he  delivered  them :  if  he  got  a  receipt 
for  them,  he  should  produce  and  prove  it ;  and  if  they 
were  entered  in  a  book  kept  by  the  Carrier,  notice  should 
be  given  to  produce  it.  The  Plaintiff  must  next  prove 
how  the  Goods  were  directed,  and  that  they  had  not  been 
received,  or  were  lost ;  and,  lastly,  their  value. 

The  defence  for  the  Defendant  must  be  on  one  of  the 
grounds  of  exemption  above  stated,  (r) 

Thus,  if  Goods  were  sent  by  a  Hoy,  and  she  was  sunk 
in  a  sudden  squall  of  wind,  that  is  the  act  of  God,  and 
excuses  the  Carrier.  The  Law  is  the  same  if  the  Hoy- 
man  was  obliged  to  throw  some  Goods  overboard  to 
lighten  the  vessel,  or  save  the  passengers  in  a  storm. (s) 

So  if  Goods  were  set  on  fire  by  lightning,  it  would  be 
deemed  the  act  of  God  :  but  in  case  of  Goods  being  con- 
sumed by  fire,  the  Defendant  must  prove  the  fire  to  have 
proceeded  from  that  cause.(J) 

To  exempt  the  Carrier  from  liability,  by  reason  of  the 
Goods  being  taken  from  him  by  an  armed  force,  they 
must  be  foreign  enemies  :  not  Rioters  or  River  Pirates. (u) 

(r)  1  Stra.  128.  (*)  1  Roll.  Ab.  79. 

(*)  I  Term  Rep.  27.  (M)  1  Vent.  109.   1  Term.  Rep.  33. 


CHAP.  XIII.]  Action  of  Trespass  on  the  Cast.  267 

It  should,  therefore,  be  shown  of  what  description  the 
Persons  were. 


But  if  a  Person  will  force  his  Goods  on  the  Carrier 
when  his  wagon  or  vessel  is  otherwise  full ;  or  puts  his 
Goods  into  improper  packages,  and  they  are  lost  or  dam- 
aged, the  Carrier  is  not  liable  ;  when,  therefore,  this  is  the 
case,  the  Defendant  should  be  prepared  with  Evidence  to 
that  effect. (x) 

The  general  and  most  usual  defence  is,  that  the  Car- 
riers have  given  a  notice  to  all  Persons  sending  Goods  by 
them,  that  they  would  not  be  answerable  beyond  a  certain 
sum,  or  for  a  certain  description  of  Goods,  unless  they 
were  specifically  paid  for  the  carriage  of  them :  a  great 
variety  of  decisions  have  taken  place  on  this.  (Vid.  2 
Esp.  Dig.  N.  P.  128.)  It  is  now  held,  that  there  must  be 
that  specific  notification  made  to  every  Person  sending 
Goods  :  and  that  the  putting  up  a  large  board  to  that  ef- 
fect in  the  Coach-office,  was  not  sufficient  notice,  unless 
knowledge  of  it  was  brought  home  to  the  Person  sending 
the  Goods. 

So  held  by  Abbott,  Ch.  Just.,  at  G.  Hall,  Sitt.  after 
Trin.  Term,  1819. v.  Waterhouse. 

5.  Pawnbrokers,  or  Persons  who  take  Goods  in  pledge, 
are  the  next  subject  of  this  Action  for  any  misconduct 
respecting  them,  as  for  losing  them,  or  not  returning  them 
on  demand  ;  it  being  the  nature  of  the  contract,  that  on 
repayment  of  the  sum  advanced  on  them,  the  Goods  are 
to  be  restored. (z/) 

(a-)  2  Esp.  Dig.  N.  P.  126.     2  Show.  127. 
(y)2  Esp.  Dig.  N.  P.  132. 


268  Of  the  Evidence  in  the         [CHAP.  XIII. 

Where  this  is  the  case,  the  Plaintiff  has  only  to  give 
Evidence  of  the  pawning  :  that  is  done  by  producing  the 
Pawnbroker's  Ticket,  and  proving  it  to  be  his  hand- 
writing, or  that  of  his  clerk,  who  should  be  called  as  a 
"Witness,  if  there  is  any  doubt  of  his  being  so  employed. 
If  the  Person  is  not  a  Pawnbroker,  but  has  had  the  Goods 
on  pledge,  the  delivery  of  them  on  those  terms  to  the  De- 
fendant, must  be  proved  :  the  Plaintiff  must  next  prove 
the  value  of  them  ;  and,  lastly,  a  tender  of  the  money  ad- 
vanced on  the  pledge,  and  a  demand  of  the  Goods.  This 
Evidence,  on  the  part  of  the  Plaintiff,  must  be  given,  and 
may  be  done  by  the  Witness  who  did  it; 

The  Defendant  may  give  in  Evidence  that  the  Goods 
were  stolen  from*  him,  though  he  otherwise  took  due  care 
of  them :  but  this  would  be  no  answer,  if  the  Plaintiff  had 
previously  tendered  the  sum  advanced  on  them. 

6.  Another  case  in  this  Action,  where  Goods  have  been 
delivered  to  another  to  be  kept,  or  been  lent,  and  they  are 
lost.(z) 

In  these  cases,  the  Person  who  has  had  them  so  deliver- 
ed to  him,  is  only  liable  where  such  neglect  is  imputable 
to  him,  as  occasions  the  loss  ;  and  the  Plaintiff  must  al- 
ways be  prepared  with  Evidence  to  show  that  there  was 
gross  neglect,  or  a  user  of  the  thing  lent,  in  a  manner  dif- 
ferent from  the  purpose  for  which  the  owner  lent  it.  (a) 

Thus,  ex.  gr.  if  Goods  are  delivered  by  a  Person  to  be 
put  on  board  a  ship,  and  he  uses  defective  tackle  which 
breaks,  and  the  Goods  fall  into  the  water  and  are  lost,  the 

(z)  2Esp.  N.  P.  132.  (a)  1  Stra.  681. 


CHAP.  XIII.]  Action  of  Trespass  on  the  Case.  269 

party  is  answerable  ;  for  it  was  gross  neglect  in  him  not 
to  have  good  and  sufficient  tackle.(6) 

So  if  one  lends  a  Horse  to  go  one  journey,  and  the  par- 
ty to  whom  he  has  lent  it,  takes  him  another,  and  the 
Horse  is  lost  or  dies,  the  party  to  whom  he  was  lent  is 


7.  Action  against  Innkeepers,  for  things  lost  by  Persons 
in  their  Inns,  is  another  ground  of  this  Action.(of) 

To  entitle  the  PJaintiff  to  recover  damages  in  this  Ac- 
tion, he  must  prove,  1st,  That  he  was  a  Guest,  and  using 
the  Inn  as  such,  and  had  been  so  received  :  2.  That  the 
House  was  a  common  Inn  for  the  reception  of  travellers, 
kept  by  the  Defendant  :  3.  That  the  loss  arose  from  the 
act  or  neglect  of  the  Innkeeper,  or  his  Servants  :  4.  That 
the  Goods  were  brought  into  the  Inn,  and  were  the  proper- 
ty of  the  Plaintiff;  and  were  lost  or  stolen  from  the  Inn, 
and  after  being  so  lodged  there  :  all  these  matters  must 
be  proved  by  Witnesses,  to  be  called  on  the  Trial.  (e) 

In  answer  to  that  case,  however,  the  Innkeeper  may 
prove,  1.  That  he  told  the  Plaintiff  that  his  House  was 
full,  and  that  there  was  no  accommodation  for  him,  but 
the  Plaintiff  said  that  "  he  would  shift  or  take  his  chance  ;" 
for  if  his  Goods  were  afterwards  lost,  the  Innkeeper  would 
be  discharged,  for  he  did  not  receive  Plaintiff  as  a  guest. 
2.  He  may  show  that  the  Plaintiff  was  not  a  traveller  or 
guest,  but  a  neighbour,  who  asked  for  a  lodging  out  of 
kindness.(/)  3.  That  the  Goods  were  stolen  by  Plaintiff's 

(£)  2  Esp.  N.  P.  C.  262.  (c)  Com.  Rep.  136. 

(rf)  2  Esp.  Dig.  N.  P.  133.        0)  Co.  32.  5  Term.  Rep.  273. 

(/)  1  And,  29.  Moor.  78. 


270  Of  the  Evidence  in  the         [CnAp  XIII. 

own  Servant  or  Companion.  4.  That  he  desired  the  Plain- 
tiff to  put  the  Goods  into  a  particular  place  for  security, 
which  he  did  not  do,  and  they  were  lost,(^)  the  Inn- 
keeper, in  that  case,  is  not  liable.  5.  That  the  Plaintiff 
gave  orders  to  have  the  Goods  disposed  of  in  a  particular 
place  out  of  the  Inn ;  as  if  he  ordered  his  Horse  to  be 
turned  out  to  grass,  and  he  is  lost,  the  Innkeeper  is  not 
liable.  6.  If  the  Goods  lost  are  dead  ones,  the  Innkeeper 
may  show,  that  they  were  Goods  which  the  Plaintiff  left 
at  his  Inn,  where  he  himself  was  not  as  a  guest,  and  of 
course,  the  Innkeeper  deriving  no  profit  from  them,  was 
not  bound  to  take  charge  of  them  :  but  if  he  had  left  a 
Horse  there,  inasmuch  as  the  Innkeeper  derived  a  profit 
from  his  standing,  if  he  was  lost,  the  Innkeeper  would  be 
liable :  all  these  facts  must  be  proved  by  Witnesses,  ac- 
cording as  the  Defendant  relies  on  them  for  his  defence,  (fi) 

Another  ground  of  Action  against  an  Innkeeper  isJt/br 
refusing  to  receive  a  Person  as  a  Guest,  who  comes  to  his 
Inn,  and  offers  to  pay  for  what  he  has.  The  Plaintiff,  in 
that  case,  must  give  in  Evidence  at  the  Trial,  that  the 
Defendant's  House  is  a  common  and  open  Inn  or  Public 
House,  and  that  he  required  to  be  entertained  in  it,  which 
was  refused ;  and  that  he  offered  to  pay  for  what  was  fur- 
nished to  him  :(z)  but  the  Defendant  may  show  that  his 
House  was  full,  and  that  there  was  no  room. 

8.  Maliciously  suing  out  a  Commission  of  Bankruptcy  is 
another  good  ground  of  this  Action.(£) 

(§•)  Moor.  158.  Caleys  Cas.  8  Co.  22. 

(A)Salk.  388.  (i)  Keilw.  50.  Dyer  58. 

(*)  2  Esp.  Dig.  N.  P.  135. 


CHAP.  XIII.]  Action  of  Trespass  on  the  Case.  271 

In  that  Action  the  Plaintiff  must  give  in  Evidence,  1. 
The  Commission,  by  which  it  will  appear  that  the  De- 
fendant was  the  Petitioning  Creditor ;(/)  and  this  is  done 
by  the  production  of  the  Commission  itself ;  or,  if  the 
Plaintiff  cannot  get  at  it,  by  a  Witness  from  the  Bank- 
rupt's Office,  who  will  prove  the  issuing  of  the  Commis- 
sion on  the  Defendant's  petition,  which  he  will  produce, 
and  it  will  be  necessary  to  prove  the  Defendant's  hand  t6 
it.  2.  The  Proceedings  under  it  should  be  given  in  Evi- 
dence, by  a  subpoena  duces  tecum  to  the  Solicitor  under  the 
Commisssion,  and  to  the  Assignees  ;  if  not  forthcoming, 
the  Gazette  should  be  produced  to  show  the  opening  of 
the  Commission ;  and  any  of  the  Commissioners  may  be 
called  to  prove  that  it  was  opened,  and  how  it  was  pro- 
ceeded in.  3.  The  Plaintiff  must  prove  that  it  was  super- 
seded, and  give  some  Evidence  of  bad  or  malicious  mo- 
tives actuating  the  Defendant  in  suing  it  out.  That  it 
was  superseded  is  proved,  by  producing  the  writ  of  Super- 
sedeas  under  the  great  Seal :  a  copy  of  the  Lord  Chan- 
cellor's order  on  the  Petition  is  not  sufficient.(m) 

If  the  Plaintiff  cannot  bring  malice  home  to  the  De- 
fendant, it  is  better  for  him  to  get  an  assignment  of  the 
Bond  from  the  Chancellor,  as  in  this  Action,  the  Damages 
are  uncertain ;  but  under  the  Bond  he  recovers  the  whole 
penalty  :  in  which  case  the  execution  of  the  Bond  and 
the  Assignment  must  be  proved. 

9.  Deceit  in  Sales  forms  another  ground  of  this  Ac- 
tion, (n) 

(/)  3  Burr.  1418.  (m)  3  Carapb.  60. 

(n)  2  Esp.  Dig.  N.  P.  136. 


272  Of  the  Evidence  in  the        [CHAP.  XIIL 

To  enable  the  Plaintiff  to  recover  in  this  Action,  where 
there  has  been  no  Warranty,  he  must  show,  1.  A  sale 
and  a  false  representation  made  by  the  Defendant  of  the 
quality  or  value  of  the  thing  sold,  which  he  knew  at  the 
time  was  untrue,  and  which  the  Plaintiff  could  not 
know.(o)  2.  That  it  was  made  at  the  time  of  the  sale,  and 
not  afterwards. (p)  3.  The  Plaintiff  may  show,  that  the 
Defendant  used  some  art  to  hide  the  defects  of  the  things 
sold.(§0  What  were  the  representations  made  by  the  De- 
fant,  and  the  time  when  made,  may  all  be  proved  by 
Witnesses,  who  can  speak  to  those  facts.  So  if  the  De- 
fendant had  sold  something  not  his  own,  pretending  to 
have  a  right  or  title  to  it,  which  he  had  not,  the  sale  should 
be  proved,  and  the  property  be  proved  to  be  in  another, 
who  may  be  called,  (r)  If  there  was  a  warranty,  that  should 
be  proved  as  laid,  and  be  proved  by  Witnesses  to  be  false, 
Vid.  ante,  in  Assumpsit.(,s) 

10.  The  case  of  giving  a  Person  a  false  Character  for 
solvency,  by  which  he  gains  credit  for  Goods,  ranks  un- 
der this  head.  The  Plaintiff,  in  that  case,  must  prove, 
first,  what  is  laid  in  the  declaration  as  representing  the 
Party's  character  for  solvency :  this  is  usually  laid  in  gen- 
eral terms,  which  may  have  been  either  by  writing,  as  by 
letter,  which  should  be  produced,  and  the  Defendant's 
signature  to  it  be  proved  ;  or  by  parol,  to  be  proved  by  a 
Witness.  He  must  next  prove  the  furnishing  of  the 
Goods  in  consequence  ;  and  the  loss  of  them,  the  Person 
recommended  being  insolvent ;  and  he  must,  lastly,  clear- 
ly make  out  in  Evidence,  that  the  Defendant  knew  the 

(o)  1  Salk.  211.1  Stra.  414.        (A)  Finch's  Law,  289. 
(?)  1  Roll.  Rep.  5.  (r)  2  Esp.  Dig.  N.  P, 

(*)  2  East,  446. 


CHAP.  XIII.]  Action  of  Trespass  on  the  Case.          273 

Person  was  not  to  be  trusted  ;  or  did  it  ex  ?naldjide,  that 
is,  ex.  gr.  that  the  Person  recommended  had  some  time 
before  had  been  a  Bankrupt :  that  he  was  indebted  to 
him,  and  he  sought  to  pay  himself  by  the  produce  of  the 
Goods :  or  was  himself  to  be  in  any  way  a  gainer.(f) 
This  is  indispensable  ;  for,  if  the  Defendant  himself  be- 
lieved the  Person  to  be  solvent,  no  action  will  lie.(w) 

11.  For  any  nuisance  committed  by  one  man  against 
another,  either  to  his  House  or  Land,  this  Action  also  lies. 

Such  as  darkening  the  lights  of  his  House,  by  raising 
some  erection  near  it.  In  that  Action  the  Plaintiff  must 
prove  that  his  House  had  been  erected  at  least  twenty 
years,  and  that  it  had  enjoyed  the  light,  of  the  privation  of 
which  he  complains,  for  that  time  :  2.  That  the  Defend- 
ant had  made  the  Erection,  and  that  the  effect  of  it  was  to 
make  his  House  dark  and  uncomfortable  :  this  is  proved 
by  Witnesses,  who  know  the  Plaintiff's  House,  the  time 
it  has  stood,  and  who  can  speak  to.  the  effect  of  the  De- 
fendant's erection,  (x) 

The  same  mode  of  proof  takes  place,  when  the  nui- 
sance is  for  overhanging  the  Plaintiff 's  House,  or  filling 
it  with  noisome  smells  :  in  those  cases  the  Plaintiff  need 
only  prove  his  possession,  and  call  the  Persons,  living  in 
the  House,  to  state  the  inconvenience  caused,  or  others 
who  have  perceived  the  nuisance.  Nuisances  to  the  land 
are  proved  in  like  manner(y)  by  calling  Witnesses  to  the 
facts. 

(0  2  Esp.  Dig.  N.  P.  139.  2  Bos.  &  Pull.  141. 

(M)  2  East's  Rep.  92. 

(^)  2  Esp.  Dig.  N.  P.  143.  9  Co.  58.  2  Saund.  175.  in  note. 

(y)2  Esp.  Dig.  N.  P.  145. 

if  in 


274  Of  the  Evidence  in  the        [C  HA  p.  XIII. 

In  Settling  the  Evidence  under  this  head,  it  must  be 
observed  that  the  Evidence  should  prove  the  fact  to  have 
taken  place  in  the  County  laid,  as  the  Action  is  local. (z) 

12.  Disturbance  in  the  enjoyment  of  any  right  is  also  a 
ground  of  this  Action  ;  as  a  right  of  way>  right  of  com~ 
mon,  right  of  water,  and  other  similar  rights.(a) 

If  the  Action  is  for  disturbance  of  a  right  of  Way :  the 
Plaintiff  must  first  give  Evidence  of  his  right  to  the  way, 
as  it  is  over  the  soil  of  another.  If  he  claims  it  by  grant, 
he  must  produce  the  deed  which  gave  it,  and  call  the  sub- 
scribing Witness  to  the  Execution  ;  unless  it  happens  to 
be  more  than  thirty  years  old,  in  which  case  the  bare  pro- 
duction of  it  is  sufficient ;  but  the  Plaintiff  must  also  prove 
that  he  used  the  way  during  that  time. 

If  the  right  of  way  is  claimed  by  prescription  or  usage. 


That  is  supported  by  Evidence  of  Persons  of  consider- 
able age  who  have  known  the  way  used  without  interrup- 
tion as  long  as  they  can  remember  ;  this  presupposes 
some  grant  of  it,  but  which  has  been  lost.(6) 

In  one  case  it  is  said  that  twenty  years'  enjoyment  un- 
interruptedly, is  a  title  to  go  to  the  jury.  Campbell  v. 
Wilson,  3  East.  294. 


•(z)  1  Taunt.  379. 

(a)  2  Esp.  Dig.  N.  P.  147.  Co.  Litt.  5.  Cro.  Jac.  170.    5  Taunt, 
511. 

4  1 1  East.  375.  in  note.  Bull.  N.  P.  74, 


CHAP.  XIII.]  Action  of  Trespass  on  the  Case.  275 

In  Settling  the  Evidence  under  this  head,  as  well  as  in 
all  cases  of  disturbance  of  right,  great  accuracy  is  requir- 
ed, to  see  that  the*  proofs  correspond  with  that  right  laid 
in  the  declaration,  as  any  variance  will  be  fatal ;  as  if  the 
Plaintiff"  was  to  lay  his  right  of  way  from  A.  to  B.,  and 
the  termini  were  wrong,  it  being  from  A.  to  C.  it  would 
nonsuit  the  Plamtiff  ;(c)  and  so  in  other  cases.  As  if  he 
was  to  claim  a  right  of  carriage  way,  and  he  proved  a 
drove  way  only,  he  would  fail.  The  Evidence  in  case  of 
a  disturbance  of  right  of  common  is  founded  on  similar 
rules,  that  is,  the  Plaintiff  must  prove  his  right  precisely 
as  he  lays  it ;  if  laid  to  be  for  one  species  of  cattle,  and 
that  of  another  is  proved ;  for  a  given  number,  and  a  dif- 
ferent one  is  proved ;  it  is  fatal.  The  Plaintiff's  Evi- 
dence in  this  Action  is  first  to  show,  that  he  had  a  right 
of  common :  'that  is  proved  by  calling  old  Witnesses, 
who  know  the  Plaintiff's  land  and  the  common,  and  that, 
as  long  as  they  can  remember,  the  occupiers  or  owners 
of  Plaintiff's  land  have  had  and  used  the  common  ;  and 
they  must  also  prove  in  what  way  it  was  used,  which 
must  be  correspondent  with  the  Pleadings.  He  must  then 
prove  the  injury  done  by  the  Defendant,  or  his  cattle,  also 
by  Witnesses,  which  finishes  his  case.(rf) 

It  is  to  be  taken  as  a  general  Rule,  that  every  right 
claimed  by  prescription,  as  for  Toll  for  Fairs  or  Markets^ 
Toll  for  grinding  at  a  Mill,  or  for  passage-money  over  an 
ancient  Ferry,  and  for  a  watercourse,  is  proved  in  the  same 
way  by  old  Witnesses,  who  remember  the  toll  or  ferry- 
age  paid,  or  the  watercourse  flowing  in  a  particular  di- 

(O  Wright  -v.  Bathing,  2  East.  377. 
(d)  2  Esp.  Dig.  N.  P.  148.    9  Co.  1 12. 


276  Of  the  Evidence  in  the         [CHAP.  XIII- 

rection,  as  long  as  they  can  remember ;  and  in  all  cases, 
as  the  Action  is  for  withholding  the  Plaintiff 's  right  he 
must  prove  the  several  acts  of  the  Defendant  in  breach  of 
his  right.(e')  Such  as  exposing  Goods  near  the  Market, 
and  so  fraudulently  evading  payment  of  the  Toll ;  setting 
up  another  Fair  or  Market  within  seven  miles  of  the  Plain- 
tiff's,  or  on  the  same  day;  carrying  Corn  to  another 
Mill.(y)  In  the  case  of  a  Watercourse,  so  claimed  by 
prescription,  it  is  established  by  the  Evidence  similar  ,  to 
that  just  stated,  and  giving  Evidence  of  the  Defendant 
having  diverted  or  turned  the  water ;  made  pits  to  take 
off  part  or  the  like,  or  in  any  way  to  diminish  the  quantity 
of  water  'which  usually  flowed  to  the  Plaintiff 's  Premises, 
which  is  all  matter  of  proof  by  witnesses. 

Disturbance  in  the  enjoyment  of  a  Pew  in  the  Church 
is  another  ground  of  this  Action,  (g) 

The  Plaintiff  must  make  out  his  title  to  the  Pew  in  the 
first  place  :  for  this  purpose,  he  must  either  produce  a 
Faculty,  which  is  a  grant  of  the  Pew  under  the  seal  of  the 
Bishop,  and  is  in  its  production  sufficient  Evidence,  or  he 
must  show  his  right  to  the  Pew  as  appurtenant  to  an  an- 
cient messuage  :  for  this  purpose,  old  people  should  be 
called  who  know  the  Plaintiff's  house  ;  that  it  has  been  a 
dwelling  house  of  the  family  as  long  as  they  can  remem- 
ber ;  and  that  Individuals  of  that  family  always  sat  in  that 
Pew  to  the  exclusion  of  all  others. (h)  But  it  has  been 
held  that  such  an  enjoyment  for  thirty  years  would  be  suf- 
ficient.^") 

(e)  2  Esp.  Dig.  N.  P.  150.  2  Taunt.  120.  1  Bos.  Sc  Pull.  400. 
(/)  2  Saund.  1 1 5.  Dougl.  238.  (#)  2  Esp.  Dig.  N.  P.  1 5 1 . 
(A)  l  Term.  Rep.  428,  (0  5  Term.  Rep.  297. 


CHAP.  XIII.]  Action  of  Trespass  on  the  Case.  277 

The  Plaintiff  should  also  prove,  that  he  or  his  prede- 
cessors had  repaired  the  Pew,  if  averred  in  the  Declara- 
tion ;  but  it  is  said  not  to  be  necessary  in  an  Action 
against  a  Stranger,  though,  if  against  the  Ordinary,  it  is 
necessary.  (£) 

All  this  is  matter  of  parol  Evidence,  which  the  Plaintiff 
must  bring  forward  at  the  Trial,  as  well  as  proof  of  the 
acts  of  disturbance  done  by  the  Defendant. 

13.  The  infringement  of  an  Authors  Copyright  forms 
another  ground  of  this  Action.(/) 

In  this  case,  the  only  Evidence  required  for  the  Plain- 
tiff, is  the  proof  that  he  is  the  Author  of  the  Book  or 
Work  in  question,  which  may  be  done  by  producing  it, 
and  calling  a  witness  who  knows  it,  or  by  the  Printer  who 
received  the  copy  from  him.  He  should  then  produce 
the  Work  or  Book  published  by  the  Defendant,  and 
prove  that  he  published  it,  which  may  be  done  by  a  wit- 
ness  who  bought  it  at  Defendant's  house  ;  and  then,  by 
comparing  one  Book  with  another,  the  Piracy  will  ap- 
pear ;  thirdly,  he  should  prove  the  Injury  from  the  Sale 
of  the  Defendant's  Book. 

The  Evidence  for  the  Defendant  must,  however,  be 
attended  to.  He  may  show, — 1.  That  the  Book  publish- 
ed by  him  is  essentially  different  from  the  Plaintiff's, 
though  the  subject  is  the  same,  by  pointing  out  the  addi- 
tions or  amendments  made  by  him  :  this  is  done  by  col- 
lating the  two  Books,  and  pointing  out  the  passages ;  that 

(*)  I  Wils.  326.  (/)  2  Esp.  Dig.  N.  P.  141. 


278  Of  the  Evidence  in  the         [CHAP.  XIII. 

reduces  the  matter  to  a  question  for  the  Jury  to  say 
whether  the  Books  are  the  same,  or  different. — 2.  He  may 
show  that  the  time  given  by  the  Statute  of  Copyright  to 
the  Author  is  expired.  That  may  be  proved  either  by 
the  Persons  who  printed  the  first  edition  of  the  Plaintiff's 
Work,  or  by  others  who  know  when  it  first  came  out : 
the  time  of  the  printing  of  the  Defendant's  Work  or  Book 
will  appear  by  the  title  page.(wz) 

14.  Of  a  similar  description  is  this  Action,  when 
brought  for  infringing  a  Patent. 

The  Plaintiff,  in  this  Action,  must  first  produce  the 
Patent,  which,  being  under  the  great  Seal,  proves  itself. 
The  invention  whether  mechanical  or  manufacture,  for 
which  the  Patent  is  granted,  should  be  produced  in  a  per- 
fect state,  and  be  proved  to  have  been  made  according  to 
the  specification.  Then  that  which  has  been  manufactur- 
ed by  the  Defendant  of  the  same  kind  must  be  produced, 
and  be  proved  to  have  been  purchased  from,  or  obtained 
from  the  Defendant.  It  should  then  be  pointed  out  to  the 
Jury,  by  the  Plaintiff 's  witnesses,  that  the  two  things  pro- 
duced are  precisely  alike,  and  in  what  respect,  in  particular, 
the  Defendant  has  adopted  that  for  which  the  Plaintiff 
had  the  Patent.  This  is  proof  by  witnesses,  as  well  as 
the  damages  usually  laid  in  the  Declaration  in  the  loss  of 
the  sale  of  the  article  by  the  Plaintiff,  (n) 

This  is  all  that  is  required  for  the  Plaintiff  to  prove  at 
the  Trial.  The  Defendant's  Evidence  is  more  extensive. 

(m)  7  Term.  Rep.  509.     1  East.  358.     1  Campb.  94.    4  Esp.  N. 

P.  C.  168. 

(n)  2  Esp.  Dig.  N.P.I  56. 


CHAP.  XIII.]    diction  of  Trespass  on  the  Case.          279 

He  may  first  show  that  the  Invention  for  which  the 
Plaintiff  has  obtained  the  Patent  is  not  original.(o)  This 
is  done  by  producing  something  of  the  same  sort  for  which 
the  Patent  is  granted  ;  and  proving  by  Witnesses,  that 
they  had  either  made,  or  manufactured,  or  purchased  the 
same,  before  the  date  of  the  Patent,  from  other  Persons. 
By  this  Evidence  it  must  accurately  be  established  that 
the  subject  of  the  Patent,  and  that  made  by  Defendant, 
appear  to  be  the  same,  on  which  occasion  the  Plaintiff 
may  point  out  the  difference. 

The  Defendant,  2dly,  may  show  any  defect  in  the  Pa- 
tent or  Specification  :  and  if  he  does  so,  the  Plaintiff  can- 
not recover  :  as,  he  may  show  that  the  Patent  was  for  a 
whole  work,  whereas  what  the  Plaintiff  has  done  was  an 
addition  only>  and  for  which  only  he  should  have  had  a 
Patent.(  p)  That  the  specification  was  so  obscure  or  in- 
accurate, that  that  for  which  the  Patent  was  granted  could 
not  be  made  by  it,  or  required  something  else  to  be  used, 
not  mentioned  in  the  Patent,  in  order  to  produce  it 


3dly,  The  Defendant  may  show  that  the  Plaintiff  was 
not  the  Inventor,  but  that  another  Person  was  :  but  it 
should  appear,  in  that  case,  that  that  Person  lived  in  Eng- 
land ;  for  a  Patent  may  be  good  though  granted  for  some- 
thing done  beyond  sea  before,(r)  but  which  had  been 
brought  into  this  country  by  the  Plaintiff. 

Lastly,  The  Defendant  may  show  that  the  specification 
was  not  enrolled  within  the  time  required  :(s)  all  these  are 

(o)  2  Salk.  447.  (fi)  Bull.  N.  P.  76. 

(?)  Bull.  N.  P.  78.  1  Term  Rep.  602. 

(r)  Salk.  447.  (s)  2  Carapb.  294. 


280  Of  the  Evidence  in  tJw        [CHAP.  XIII. 

cases  of  vivd  voce  proof  referring  to  the  Patent  and  speci- 
fication. 

14.  If  the  Action  is  for  disturbing  a  Person  in  the  en- 
joyment of  an  office  with  fees  annexed.(J) 

The  Plaintiff  must  first  show  that  he  was  appointed  to 
the  Office  by  the  Person  in  whom  the  right  of  nomination 
was ;  he  must  next  show  that  there  are  certain  legal  and 
regular  Fees  belonging  to  it,  and  that  the  office  is  of  a  per- 
manent nature  :(u)  If  the  fees  claimed  are  what  are  merely 
given  as  gratuities,  that  will  not  support  an  action :  he 
must,  lastly,  prove  the  amount  of  them  and  the  taking  of 
them  by  the  Defendant  to  his  injury  for  a  certain  time. 
The  appointment  to  the  office  may  be  by  parol  or  grant ; 
if  the  former,  it  must  be  proved  by  a  Witness  :  if  the  lat- 
ter, by  production  of  the  the  Deed.  The  other  matters 
are  proved  by  Witnesses. 

These  are  the  most  important  heads  of  this  Action  :  as 
they  apply  to  the  things  for  an  injury  to  which  the  Action 
is  brought,  it  remains  only  to  consider  such  as  have  a  re- 
ference to  the  Person. 

These  are :  as  the  Plaintiff  stands  in  the  relation  of  a 
Father,  a  Husband,  or  a  Master. 

1.  This  Action  lies  at  the  suit  of  the  Father  for  Seduc- 
tion of  his  daughter.  It  is,  in  form,  considered  as  main- 
tainable for  the  mere  loss  of  the  service  of  his  daughter  ; 

(0  2  Esp.  Dig.  N.  P.  152.      (a)  2  Vent.  171.    Cro.  El.  859. 


CHAP.  XIII.]  Action  of  'trespass  on  the  Case.  281 

but  it  has  been  ruled,  that  the  Plaintiff  may  go  into  Evi- 
dence of  die  loss  of  comfort  in  the  affections  of  his  child, 
and  the  injury  to  his  feelings. (x) 

This  case  is  usually  proved,  by  the  Plaintiff's  daughter 
who  has  been  seduced;  proving  her  relationship  to  the 
Plaintiff;  her  doing  the  household  offices  and  duties  for 
him ;  her  Seduction,  with  the  circumstances  of  miscon- 
duct and  dishonour  of  Defendant,  such  as  seducing  her  by 
promise  of  marriage ;  and  if  the  Plaintiff  has  been  put  to 
the  expense  of  her  lying  in,  or  otherwise,  and  it  is  laid  in 
the  Declaration,  it  should  be  proved. 

It  is  indispensable  for  tlie  Plaintiff  to  prove ;  that,  at 
the  time  the  seduction  took  place,  his  daughter  made  part 
of  his  family,  or  occasionally  at  least  assisted  in  the  domes- 
tic business  of  it ;  for  if  she  was  out  at  service,  or  had 
otherwise  separated  herself  entirely  from  her  Father's  fa- 
mily, no  Action  in  that  case  will  lie  at  his  suit.Q/) 

2.  This  Action  will  lie  for  the  excessive  beating,  or  ill 
treating,  the  Plaintiff's  son  or  daughter,  with  a  per  quod 
servitium  amisit,(z)  The  facts  are  proved  in  the  same 
way  as  in  the  case  of  Seduction. 

2.  This  Action,  in  which  the  Plaintiff  sues  in  the  cha- 
racter of  a  Husband^  with  respect  to  Adultery,  has  been 
treated  of  before.  The  Action  here  to  be  applied  to,  is, 
first,  where  the  Wife  has  been  induced  to  live  away  from 
her  Husband  by  the  persuasion  of  the  Defendant,  who 


(u)  2  Esp.  Dig.  N.  P.  C.  155.    3<Esp.  N.  P.  C.  119. 
(y)  5  East.  45.  (z)  1  Esp.  N.  P.  C.  217. 

(a)  2  Esp.  Dig.  N.  P.  152. 


282  Of  the  Evidence  in  the        [CHAP.  XIII. 

has  harboured  her  after  notice,  and  after  a  request  that  she 
would  return* 

In  this  Action,  the  Plaintiff  must  prove  his  marriage  in 
the  way  before-mentioned ;  then,  that  he  and  his  Wife 
lived  happily  together,  and  that  he  treated  her  properly,  so 
that  there  was  no  pretence  for  her  quitting  his  house  on 
account  of  ill  treatment.  He  must  then  show,  that  she 
was  living  at  the  Defendant's,  and  that  he  had  given  no- 
tice to  him  of  her  improper  departure,  and  required  him 
not  to  harbour  her  :  this  notice  it  is  advisable  to  gjye  in 
writing  before  bringing  the  Action,  and  to  prove  a  copy 
of  it  at  the  Trial.  The  Plaintiff  may  then  give  in  Evi- 
dence, the  degree  of  comfort  which  he  antecedently  enjoy- 
ed with  his  Wife  ;  and  the  necessity  for  her  attention  to 
his  domestic  concerns  and  to  his  children,  if  he  has 
any.  (6) 

An  Action  on  the  case  also  lies  at  the  suit  of  the  Hus- 
band for  a  battery  of,  or  injury  done  to,  his  Wife,  by 
means  whereof  she  is  prevented  from  attending  to  her 
domestic  concerns ;  in  this  case,  her  marriage  should  re- 
gularly  be  proved ;  the  injury  which  she  received  from  the 
Defendant  be  proved  by  a  witness,  and  the  inconvenience 
and  discomfort  sustained  by  the  Plaintiff  from  her  confine- 
ment and  illness  ;  and  if  he  has  been  put  to  any  expense 
for  medical  assistance,  or  in  procuring  a  person  to  attend 
to  his  Family,  he  may  give  that  in  Evidence  if  laid  in  the 
Declaration. 

3.  In  the  character  of  A  Master,  the  Plaintiff  may  also 
6  Bull.  N.  P.  78. 


CHAT.  XHL]  Action  of  Trespass  on  the  Case.  283 

sustain  this  Action,  for  seducing  away  and  harbouring 
his  Servant  or  Apprentice,  or  for  retaining  the  former  in 
his  service,  when  required  to  discharge  him  :  or  for  har- 
bouring his  Apprentice,  (c) 

In  such  Action,  the  Plaintiff  must  prove,  that  the  Per- 
son was  his  Servant,  and  known  to  be  so  by  the  Defend- 
ant; that  the  time  of  his  service  was  not  ended,  nor  had 
the  Plaintiff  discharged  him :  that  the  Defendant  with  such 
knowledge,  took  him  into  his  service  :  when  this  has  been 
dorite,  it  is  not  absolutely  necessary  for  the  Plaintiff  to  re- 
quire the  Defendant  to  give  him  up,  before  Action  brought, 
but  it  is  adviseable  to  do  so. 

But  where  the  Defendant  had  hired  a  Servant  of  the 
Plaintiff's,  not  knowing  him  at  the  time  to  be  so,  no  Ac- 
tion will  lie  until  after  notice  given  to  him  by  die  Plaintiff 
that  he  is  so,  and  a  requisition  made  by  him  that  he  should 
discharge  such  Servant  from  his  employment.  This  no- 
tice and  requisition  are  best  made  in  writing,  and  served 
on  the  Defendant  before  Action  brought,  and  a  copy  of 
them  proved  to  have  been  served  on  him,  by  a  witness  at 
the  Trial. 

If  the  Plaintiff  has  suffered  any  loss  by  the  absence  of 
the  Servant,  as,  ex.  gr.  if  his  work  have  been  delayed. 
This,  if  laid  in  the  Declaration,  the  Plaintiff  should  prove 
by  viva  voce  Evidence. 

If  the  Action  is  for  seducing  or  harbouring  the  Plain- 
tiff's Apprentice,  he  must  prove  the  Indenture  of  Ap- 
prenticeship by  the  subscribing  witness,  and  then  the 

(c)  2  Esp.  Dig.  N.  P.  154.   2  Saund.  169. 


284  Of  the  Evidence,  fcfc.         [CHAP.  XIII. 

same  steps  as  to  the  notice,  requisition,  &c.,  as  before- 
mentioned  in  the  case  of  a  Servant ;  and,  in  either  case, 
it  is  no  excuse  for  the  Defendant,  that  the  Servant  or  Ap- 
prentice refused  to  return,  or  that  the  Servant  was  a 
Journeyman  working  by  the  Piece;  the  Defendant  is 
bound  to  send  them  away,  (of) 

The  only  matter,  it  should  seem,  which  the  Defendant 
can  give  in  Evidence  is,  that  the  Servant  was  bound  to 
serve  his  Master  under  a  penalty,  which  the  Master  sued 
for,  and  enforced  the  payment  of  it ;  for  then  the  right  of 
service  is  at  an  end.(e) 

2.  If  a  Person  beats  the  Servant  of  another,  so  as  to 
disable  him  from  working  for  his  Master,  the  Master  on 
proving  that  he  was  his  Servant,  and  the  injury  to  have 
been  done  to  him  by  the  Defendant,  and  the  loss  he  has 
sustained  from  the  want  of  his  service,  may  recover  dam- 
ages, to  the  amount  of  it,  in  this  Action  of  Trespass  on  the 
Case.(/) 

(</)  5  Term.  Rep.  221.  Cowp.  54. 

(e)  3  Burr.  1345.     2  Black.  Rep.  38f.    (/)  I  Roll.  Ab.  88. 


THE  END, 


INDEX. 


A. 

ABUTTALS. 

If  stated  in  Trespass,  how  to  be 

proved  Page  181 

ACCORD-  AND  SATISFAC- 
TION. 

Evidence  under  it  in  Debt       1 37 
How  proved  in  an  Action  of  Cove- 
nant 148 

ACCOUNT  STATED. 

What  Evidence  is  required  under 
this  Count  69 

ACT  OF  PARLIAMENT. 

How  public  and  private  Acts  are 
to  be  given  in  Evidence  1 6 

ADMINISTRATOR. 

See  EXECUTOR. 

Evidence  under  Plene  Adminis- 
trcrvit  1 32 

ADULTERY. 
In  the  Action  for  Adultery,  what 
Evidence  is  necessary          167 

AGENT. 

Where  a  Policy  is  subscribed  by 
a  Person  as  Agent  for  another, 
what  Evidence  is' required  36 


The  Agent  so  employed  is  a  good 
Witness  to  prove  the  fact 

Page  36 

Evidence  in  Actions  by  or  against 
them  79 

AGREEMENT. 
Of  the   Evidence  in  Actions  on 

Special  Agreements  47 

What  are  void  under  the  Statute  of 

Frauds  ibid. 

What  agreement  may  be  given  in 

Evidence  without  a  Stamp    48 

AMENDS. 

If  tendered  by  a  Justice  of  Peace, 
how  to  be  pleaded  and  proved 

164 
ANNUITY. 

If  set  aside,  and  an  Action  is 
brought  to  recover  the  Conside- 
ration, what  Evidence  is  neces- 
sary 60 

Evidence  in  Actions  on  Annuity 
Bonds  120 

APOTHECARY. 

Sec  SURGEON. 

APPRENTICE. 
What  Evidence  is  necessary  under 
the  Plea  of  a  Justification  for 
chastising   an   Apprentice    or 
Servant  157 


286 


INDEX. 


Case  for  Harbouring— See  Mas- 
ter. 

ARREST. 
Groundless  Arrest,  how  given  in 


Evidence  in  Malicious  Prose-  AUCTION, 

cution  230  Evidence  in  Assumpsit  to  recover 

a  Deposit  on  a  sale  by  Auction 


ARTICLES. 
Ship's  Articles,  how  far  they  are 

Evidence  83 

How  Evidence  of  them  is  to  be 

procured  ibid. 

ASSAULT. 
Evidence  in  Actions  of  Assault 

150 
Son  Assault,  Evidence  under  it 

154 

ASSIGNEE. 
See  BANKRUPT. 


Of  the  Evidence  in  Debt  for  Rent 
by  an  Assignee  124 

Against  an  Assignee  1 

Assignee  in  Covenant  must  state  Of  the 
and  prove  his  whole  title      1 40 

Evidence  in  Covenant  on  Breach  How 
for  Assigning,  Aliening,  Sec. 

143 

Evidence  to  meet  the  Case  on  the 
Breach  of  Covenant,  for  Assign- 
ing 1 44 

What  is  not  a  Breach  of  it  by  a 
Sheriff,  Bankrupt,  &c.  ibid. 


ASSUMPSIT. 

Evidence  in  Assumpsit  where  the  Evidence  when 
consideration  has  failed          60 

Evidence  where  it  is  to  recover 
Money  paid  by  mistake          62 

Of  the  Evidence  under  Non  As- 
sumpsit 105 

ATTACHMENT,  FOREIGN. 
How  proved,  if  pleaded  in  Debt 

131 


ATTORNEY.     • 
Evidence  in  Case  against  him  for 
negligence,  what  necessary 

Page  263 


53 

AVOWRY. 
See  RENT,  DAMAGE,  PEASANT. 


B. 

'BAIL. 

Evidence   on  Suing  his  Co-Bail 
for  Contribution          65  and  70 
Bail  Bond,  Evidence  on  it        118 
In  Debt  on  Bail-Bond,  (he  Defend- 
ant  under  non  est  factum  may 
show  that  it  was  made  after  the 
return  of  the  Writ  1 30 


BANKRUPT. 

Evidence  in  Actions  by  the 
Assignees  of  a  Bankrupt  91 
proved  by  proceedings,  and 
how  by  viva  voce  Evidence  92 

Bankrupt's  Wife  or  Creditor  not 
a  Witness  93,94 

Plea  of  Bankruptcy  proved  by 
production  of  the  Certificate, 
how  94 

Evidence  to  show  it  void  95 

What  Evidence  of  a  new  Promise 

96 
pleaded  1 1 1 

In  Covenant  by  the  Assignees  of  a 
Bankrupt,  what  Evidence  is 
necessary  141 

Assignment  of  a  Lease  by  the 
Commissioners,  no  Breach  of 
Covenant  not  to  assign  1 44 

Of  the  Evidence  in  Ejectment 
brought  by  the  Assignees  of  a 
Bankrupt  246 


INDEX. 


287 


Of  the  Evidence  in  Trover  for 


Goods  under 
c.  19. 


Statute  21.  Jac.  I. 
Page  288 


Of  the  Evidence  where  the  Action 
is  by  the  Indorsee  against  the 
Acceptor  Page  24 


an  Action  against  him  by  the 
Assignee  of  a  Bankrupt,  under 


Of  the  Evidence  for  Defendant  in  Of  the  Evidence  in  the  Action  by 

the  Indorsee  against  the  Drawer 

25 

Of  the  Evidence  where  the  Ac- 
tion is  by  the  Indorsee  against 
the  Indorser  ibid. 

Of  the  Evidence  when  the  Ac- 


Statute  21.  Jac.  I. 


206 


Evidence  necessary  in  an  Action 
for  maliciously  suing  out  a  Com- 
mission of  Bankruptcy  270 

BARON  AND  FEME. 
Evidence  required  in  Actions  by- 


Husband  and  Wife 


100 


Difference  when  sued  for  Debts 
contracted  before  or  after  Mar- 


riage 


ibid. 


Evidence  in  Actions  against  Hus- 
band and  Wife  ibid. 

Evidence  for  the  Husband  when 
sued  for  his  Wife's  Debts    101 

Wife's   Elopement,   how  .  far   it 
shall  discharge  the  Husband 

102 

Evidence  for  the  Wife,  when  suec 
alone  ibid 

In  Covenant  by  Baron  and  Feme 


what  they  must  prove 


141 


BILL  OF  EXCHANGE. 

In  Actions  on  them  or  Promissory 
Notes,  the  Bill  or.  Note  itsel 
must  be  produced  22 

In  what  Case  a  Copy  is  admissibl 

ibid 

Where  Plaintiff  must  prove  the 

Consideration  and  his  title  to  i 

ibid 


ceptance  is  by  Procuration    26 

Where  it  is  by  letter  27 

Where  it  is  by  parol  ibid. 

Of  the  Evidence  required  on  an 
implied  Acceptance  27 

Of  the  Evidence  where  the  Ac- 
ceptance is  by  a  Firm  •  ibid. 

Of  the  Evidence  on  Conditional 
Acceptance  28 

Adhere  it  is  payable  at  a  particular 
place  ibid. 

Of  the  Evidence  on  Bills  or  Notes 
payable  to  the  Bearer  ibid. 

Of  the  Payment  of  Money  into 
Court,  Evidence  of  Acceptance, 
and  what  must  be  proved  in  that 
Case  29 

The  same  as  to  asking  time  for 
payment  ibid. 

Notice  of  dishonour  of  a  Bill  or 
Note,  when  necessary,  and  how 
to  be  proved  ibid. 

If  given  by  letter  what  must  be 
proved  30 

How  if  the  party  cannot  be  found 


What  Evidence  the 


31 

Defendant 


may  give  in  Actions  on  Bills  or 
Notes— Want  of  Consideration, 
Usury,  or  other  illegality  33 
When  Usury  shall  avoid  a  Bill  or 
Note  ibid. 


Of  the  Evidence  when  the  Action 

is  by  the  Payee  against  the  Ac 

ceptor  2f 

Of  the  Evidence,  where  it  is  by 

the  Payee  against  the  Drawer 

24 
Difference  of  the  Evidence  in  sucl 

Cases  where  the  Bill  has  been  How  far  proof  of  the  Plaintiff 's 


BILL  OF  LADING. 


accepted,  or  refused  Accept- 
ance ibid. 


Interest  in  Goods  in  an  Action 
on  a  Policy  of  Insurance        37 


288 


INDEX. 


BONA  NOTABILIA. 
Evidence  in  Pleas  by  Executors 
Page  134 

BOND. 

Evidence  in  Actions  on  Bail  Bonds 

118 

Evidence  for  Plaintiff  in  Debt  on 
Bond,  and  non  est  factum 
pleaded  119 

Evidence  on  Bonds  of  Indemnity 

ibid 
For  performance  of  Covenants 

120 

Annuity  Bonds  ibid. 

Against  Heirs  or  Executors    121 

BOOKS. 

Public  Books,  Copies  of  them, 
Evidence,  and  how  given  1 6 


C. 

CARRIER. 

Of  the  Evidence  by  him  in  Tro- 
ver for  Goods  sent  by  him  anc 
lost  243 

How  to  .be  charged  in  Actions 
against  him  as  such,  and  the 
Evidence  required  265 

Evidence  of  what  shall 

him  266 

CHARACTER. 


See  FALSE  CHARACTER. 

CHARTER  PARTY. 
Evidence  of  Charter  Party  in  Ac- 
tions for  Freight  86 

CHURCH. 
See  PEW. 


COGNIZANCE. 

The  Defendant  making  Cogni- 
zance in  Replevin  as  Bailiff  to 
any  Person,  the  latter  cannot  be 
a  Witness  Page  174 

COMMON. 

Of  the  Evidence  in  Case  of  Avow- 
ry  for  Damage  Feasant  to  a 
Common  175 

What  is  Evidence  of  a  Right  of 
Common  176 

COMPOSITION. 
See  DEED. 

CONDEMNATION. 

Condemnation  in  the  Exchequer 
of  Goods,  Evidence  in  Trover 

250 


CONSIDERATION. 

When  necessary  to  be  proved  in 

Action,  on  Bills  of  Exchange  22 
Proof  of  illegal  Consideration  to 

make  Bill  Void  ibid. 

Rules  as  to  Cases  wher,e  required 

to  be  given  in  Evidence  in  K. 

B.  and  C.  B.  23 

exempt  Usurious  consideration,  how  to  be 

taken  advantage' of  33 

Evidence  in  Assumpsit  where  the 

Consideration  has  failed          60 


CHURCHWARDEN. 

Evidence  in  Actions  by  or  against 


a  Churchwarden 


CONSIGNEE. 

lonsignee  of  a  Cargo,    a   Good 
Witness  to  prove  interest      60 

CONSPIRACY. 

What  Evidence  in  an  Action  for 
a  Conspiracy  253 

CONSTABLE. 

Evidence  in  Actions  against  Con- 
stables, Watchmen,  and  other 
Peace  Officers  159 


75  Constable  acting  under  a  War- 


I  N  D  E  X, 


289 


rant,  not  called  upon  to  prove  its 
legality  Page  162 

CONVICTION. 

How  far  it  is  Evidence  in  Actions 
against  Justices  of  Peace  for  ar 
illegal  Conviction  1 64 

How  to  be   given   in    Evidence 

ibid 

How  a  Justice  of  Peace  is  to  de- 
fend himself,  if  the  conviction  is 
quashed  1 65 

COPY. 

Copies  of  any  Papers  or  Instru- 
ments in  the  opposite  party's 
hands  when  only  they  can  be 
given  in  Evidence,  and  what  ne- 
cessary to  make  them  so  1 6 

What  Copies  of  Matters  of  Re- 
cord, or  Public  Books  are  Evi- 
dence 16 

Copy  of  a  Bill  of  Exchange 
Note,    when    admissible,    anc 
•when  not  2 

COPYHOLD. 

Of  the  Evidence  in  Ejectment  for 
Copyhold  Lands  208 

Where  brought  for  a  Forfeiture 

ibid. 


The  Evidence  in  Covenant  must 
be  correspondent  with  the  par- 
ticular breach  Page  139 

Damages  how  to  be  proved      140 

In  Covenant  by  an  Assignee,  he 
must  state  and  prove  his  whole 
title  ibid. 

What  must  be  proved  in  Covenant 
by  Devisee,  Executor,  8cc.  141 

If  Plaintiff's  Title  is  by  Act  of 
Parliament,  what  he  must  prove 
ibid. 

Covenant  by  Assignee  of  a  Bank- 
rupt, what  Evidence  required 
ibid. 

Evidence  under  Covenant  for  quiet 
enjoyment  142 

Evidence  under  the  Covenant  not 
to  alien  or  assign  1 43 

Covenant  to  Repair,  Evidence  on 
breach  of  it  145 

orjCovcnant  for  not  Ploughing  Mea- 
dow, and  not  using  Land  in 
Husbandlike  way  146 

Evidence  for  Defendant  in  Cove- 
nant, as  other  Covenants  in  Bar 
147 

To  a  Plea  of  Entry  and  Eviction 
in  jBar,  what  Defendant  must 
prove  ibid. 


COPYRIGHT. 

Of  the  .Evidence  in  Actions  for  May 
infringement  of  Copyright    277 


COURT. 

Sentences  of  Foreign  Courts  are 

good  Evidence  in  Actions  for  Evidence 
Insurance,  how  proved          41 


COVENANT. 

Evidence  in  Assumpsit  against  a 
Tenant  on  expressed  Covenants 
in  an  Expired  Lease  7 1 

Evidence  when  any  thing  is  to  be 
previously  done  by  Plaintiff  150 

Subscribing  Witness  must  always 
be  called  139 


COVERTURE, 
be  given  in  Evidence  under 
Non   Assumpsit,   how    to    be 
proved  105 


CURATE. 

in  an  Action  by    him 
against  his  Rector  74 


CUSTOM. 

Of  the  Country,  as  to  the  Tenant's 

right,  take  away  what  was  fixed 

254 

D. 

DAMAGE  PEASANT. 
Evidence  ia  Case  of  an  Avowry 


290 


INDEX. 


for  Damage  Peasant  to  Defend- 
ant's  own  Land  Page  175 

Evidence  where  done  to  a  Com- 
mon 176 

DAY. 

The  day  laid  in  the  declaration 
when  only  material  1 3 

DEBT. 

Evidence  under  the  Pleas  in  debt 
on  speciality,  vide  Non  est  fac- 
turn.)  Rasure)  Interlineation^  £s 
crow  or  bail  bond 

DECEIT. 

Of  the  Evidence  in  Actions  foi 
deceit  in  Sale  272 


DEED. 

A  'Composition  Deed  with  Credi 
tors  may  be   given  in 
under  Non   Assumpsit,    Hov 

108 


DISTRESS. 

tie  taking  as  a  Distress,  how  to 
be  given  in  Evidence  in  Tres- 
pass under  the  Plea  of  not  guil- 
ty Page  184 
Of  the  Evidence  in  Actions  for 
irregular  Distresses  ibid. 

DOG. 

Of  the  Evidence    in    Case   for 
keeping  a  Dog  used  to  bite 
258 


E. 

EJECTMENT. 
Of  the   General   Rules  of  Evi- 
dence in  this  Action     195,  196 


DELIVERY. 

What   is    a    good    Delivery    o 
Goods  to  charge  a  Defendant 

65 


DEMAND. 
In  Trover,  how  proved 


247 


DEPOSIT. 
Evidence  in  Assumpsit  to  Reco- 
ver a  Deposit  on   a  Sale  by 
Auction  5 

DILAPIDATION. 
Of  the  Evidence  Required  in  Ac 
tions  for  Dilapidation  7 

DISCLAIMER    &    TENDER 

of  AMENDS. 

How  proved  in  Actions  of  Tres 

pass  19 


ELEGIT. 

Evidence  What  Evidence  is  required    in 
Ejectment  under  an  Elegit  207 


ENTRY  and  EVICTION. 

tfow  Evidence  of  Entry  and 
Eviction  is  to  be  given  in  Evi- 
dence in  the  Action  of  Debt 

131 

How  given  in  Evidence  under  nil 
debet  137 

How  in  the  Action  of  Covenant 

147 

ESCAPE. 

Of  the  Evidence  in  Debt  against 
the  Sheriff,  or  other  Officers 
for  an  escape  126 

Of  the  Evidence  in  Trespass  on 
the  Case  for  an  Escape,  against 
the  same  Officer  260 

ESCROW. 
Of  giving  an  Escrow  in  Evidence 

130 


D  KX. 


291 


ESTRAY. 

Of  the  Evidence  in  1' rover  by  the 
Lord  of  the  Manor  for  an  Es- 
tray  Page  243 

EVIDENCE. 

Rule  as  to  giving  written  instru- 
ments in  Evidence  61 

What  may  be  given  in  Evidence 
under  Non  Assumpsit  105 

What  is  the  Evidence  in  Debt  01 
Bonds  of  different  kinds,  from 
page  1 1 5  to  121 

What  Evidence  is  required  in 
Debt  for  Rent  1 2 1 

What  for  Double  Rent  122 

What  in  an  Action  against  Co- 
Bail  124 

What  in  Debt  on  Judgments 
matters  of  Record  1 2  5 

What  may  be  given  in  Evidence 
under  A'on  estfactum  129 

See  also  the  different  heads 
the  Actions  of  Covenant,  As- 
sault, Sec.  Sec. 


taincr  Plent  Adminiatravit^  and 
ne  unrjues  Executor 

Page  132,  133 

Under  what  circumstances  Exe- 
cutor durante  minore  xtate  may 
be  given  in  Evidence  under  the 
Plea  of  JYil  De bet  137 

What  Evidence  an  Executor  and 
Administrator  must  give  in 
Covenant  1 40 

What  in  Trover  244 


F. 


FACTOR. 

Of  the  Evidence  necessary  in  Ac- 
tions by  and  against  Factors  76 
or  Of  the   Evidence  in  Trover  for 
Goods  sold  by  a  Factor        237 

FALSE  CHARACTER. 
of  Of  the  Evidence  in  Case  for  giv- 
ing a  false  character  272 


EXCISE  AND  CUSTOMS. 
See  OFFICER. 

EXECUTION. 

Of  the  Evidence  against  (he  She- 
riff in  Case  for  informal  or  ir- 
regular Executions  259 

EXECUTOR  AND   ADMIN- 
ISTRATOR. 

What  Evidence  is  required  in  As 
sumpsit  by  Executor  or  Ad- 
ministrator 97 

When  bound  to  produce  in  Evi- 
dence Probate  or  Letters  of  Ad- 


ministration 


ibid. 


FALSE  IMPRISONMENT. 

What  is  good  Evidence  in  this  Ac- 
tion  under  not  guilty  152 

What  in  justification  153 

What  is  the  Evidence  in  particu- 
lar applying  to  different  justifi- 
cations 157  to  159 

What  in  Actions  by  Officers  of 
the  Army  and  Navy  159 

FALSE  RETURN. 
See  RETURN. 
FATHER. 

What  Evidence   is  required    to 
charge   a   Father   with  neces- 
What  is  Evidence  for  a  Defend-     saries  furnished  to  his  family 

ant  in  Actions  by  them          98  103 

What  is  Evidence  for  an  Execu-j  What  in  an  Action  on  the  case  for 
tion  under  the*  Plea  of  a  Re-\    seducing  his  daughter         281 


292 


INDEX. 


What  for  a  battery  of  his  Wife  01 
Child  Page  281 

FINDING. 

A  Person  who  finds  any  thing  how 
to  maintain  Trover  244 

FINE. 

How  to  be  given  in  Evidence  in 
Ejectment  215 


trate  for  committing  under  a 
conviction  for  killing  it  on  a 
Sunday.  Page  166 

What  Evidence  is  required  in 
Actions  of  Trespass,  arising 
from  the  pursuit  of  game  1 87 

Of  the  Evidence  of  a  justification 
under  a  Justice's  warrant  188 

Of  the  Evidence  in  Trespass 
against  a  gamekeeper  ibid. 


FIRM. 

Of  the  Evidence  in  Actions  on  Of 
Bills  where  the  Parties  trade 
under  a  Firm  27 


FISHERY. 

What  Evidence  is  required  in 
case  for  injuries  to  Rights  of 
Fishery  186 

FIXTURES. 

What  fixtures  an  outgoing  tenant 
may  take  away 


FORGERY. 

If  money  has  been  paid  on  a  for- 
ged instrument,  what  Evidence 
is  required  to  recover  it  back 


FRAUD. 

What  may  be  given  in  Evidence 
under  Non  Assumfisit          106 

FREIGHT. 

What  Evidence  is  required    n 
Actions  for  Freight  85 


G. 

GAME. 
What  Evidence  is   required  in 
Actions  under  the  Game  Laws 
129 
What  in  justification  of  a  Magis 


GAMING. 

giving   gaming  in   Evidence 
under  Non  Assumpsit          105 


GOODS. 

Of  the  Evidence  in  Assumpsit  for 
Goods  sold  and  delivered       65 
of  When  a  Sale  is  presumed,  Evi- 
dence of  it  66 
What  delivery  of   Goods    shall 
charge  the  Defendant  in   As- 
sumpsit for  Goods  sold        ibid. 
254  Of  the  Evidence  by  the  Defend- 
ant in  Assumpsit  for  Goods  sold 

67 

Of  the  Evidence  in  Sales  by  a 
Factor  76 


H. 

HANDWRITING. 

What  is  good  Evidence  of  a  par- 
ty's handwriting  16 

HERIOT. 

Evidence  in  avowry  for  a  Heriot 

179 

HORSE. 

Of  the  Evidence  in  Assumpsit  on 
the  Warranty  or  sale  of  a  Horse 

56 

HOUSE. 
Of  the-  Evidence  in  Actions  for 


INDEX. 


295 


nuisance  to  a  house    Page  273 

HUSBAND. 

Of  the  Evidence  necessary  in  case 
by  the  Husband  for  harbouring 


his  wife 


281 


Of  the  Evidence  in  Trover  by  the 


husband  and  wife 

See  BARON  and  FEME. 


Policy  itself  must  be  proved 

Page  36 

Evidence  required  where  Policy 
is  subscribed  by  the  Defendant 
himself,  or  by  an  agent  ibid. 

The  Plaintiff's  interest  in  l!.c 
Policy,  how  to  be  proved  35 


I. 

INDICTMENT. 

How  given  in  Evidence  in  the 
Action  for  malicious  prosecu- 
tion 230 

INFANT. 


244  How  if  on  Ship,  and  how   if  on 
Goods  37 

How  Plaintiff's  interest  is  to  be 
proved  in  Goods  ibid. 

How  the  time  of  ship's  sailing 

ibid. 

How  the  loss,  which  must  corres- 
pond with  that  laid  in  the  de- 


claration 


38 


Loss  by  perils  of  the  sea,  how 
proved  if  the  ship  has  founder- 
ed ibid. 

Evidence  of  concealment  of  cir- 


AX^I  JL    X  »•  •*•  ^     *.    •  u*  AVJWtlVsV        \JL        \H,VJll\-.l«UllliV-<lll     Ul        \sAl 

Infancy,  how  given  in  Evidence!    cumstances,  false    representa- 
under  Non  Assumpsit          106     tion,  or  false   warranty  avoids 
What  is  Evidence  of  necessaries!    policy,  what  is  to  be  shown  as 


in  reply  to  a  Plea  of  Infancy 


INNKEEPER. 


to  each  39 

107  As  to  the  sea-worthiness  of  a  ship 
insured,  what  is  the  best  Evi- 
dence 42 


Of  the  Evidence  necessary  to 
charge  him  for  goods  lost  at  his 
inn  269 

What  the  Plaintiff,  in  such  case 
must  prove  ibid. 

What  an  Innkeeper  can  give  in 
Evidence  in  his  defence  ibid. 

What  Evidence  necessary  in  case 
against  him  for  selling  bad  01 
unwholesome  liquors  258 

INSOLVENT  DEBTOR. 

That  the  party  took  the  benefit  oi 


Evidences  for  ship-owners  in  ac- 
tions for  freight 


84 


VI ay  be  given  in  Evidence  under 
non  estfactum  in  debt  on  bond 


INSURANCE. 
Policies  of,  what  are  the  materia 


INTERLINEATION. 


129 


ISSUE. 


The  Issue  to  be  first  attended  to 
in  Settling  Evidence  9 


an  Insolvent  Act,  how  to  be  The  affirmation  averments  in   it 
given  in  Evidence  132     must  be  Droved  10 


must  be  proved 

General   Issue  puts  the  Plaintiff 
on  proof  of  every  averment 

ibid. 


averments  in  every  case  to  be  Issue  if  on  a  part,  that  part  only 
proved  36  #// 


294 


INDEX. 


J. 

JUDGMENT. 

How  given  in  Evidence    Page  1 6 
Of  the  Evidence  in  debt    on  a 
Judgment  125 

Same  in  case  of  foreign  Judg- 
ments, or  from  Ireland  or  Scot- 
land ibid. 


JUSTICE  OF  PEACE. 

May  justify  under  the  Plea  of  not 
guilty  '  153 

How  to  show  the  commencement 
of  an   action  against  them 
production  of  the  writ          1 63 

Notice  of  Action  against  them, 
hov;  to  be  proved  ibid. 

If  a  Justice  of  peace  has  ^ 
a  tender  of  amends,  how  it  is  to 
be  proved  164 

Of  the  Evidence  against  Justices 
of  Peace  in  cases  of  illegal  con- 
victions or  legal  ones  1 65 

Evidence  in  case  for  breach  of 
duty,  what  required  3 1 8 

Of  the  Evidence  in  Actions  for 
convictions  265 


notice  to  quit  Page  201 

Of  the  Evidence  in  Ejectment  by 
mortgagees  202 

What  the  Defendant  may  give  in 
Evidence  in  Ejectment  ^    203 

How  he  may  answer  a  notice  to 
quit  204 

What  is  Evidence  of  a  waiver  of 
a  notice  to  quit  ibid. 

Of  the  Evidence  in  Ejectment  by 
the  Assignees  of  a  Bankrupt 

206 

1 53  Of  the  Evidence  in  Ejectment  un- 
der an  Elegit  207 
the  Evidence  in  Ejectment  for 
Copyhold  lands                    208 

Of  the  Evidence  in   Ejectment 
brought  under  Wills  211 

pleaded  Of  the  Evidence  in  case  by  him 
against  the  Sheriff  for  not  re- 
serving a  year's  rent  261 


by  Of 


L. 
LANDLORD. 


See  TENANT. 
Of  the  Evidence  in  Ejectment  by 

Landlord  against  Tenant,  on  the 

expiration   of  Tenant's    lease, 

what  necessary  197 

What  when  brought  on  a  notice 

to  quit  ibid. 

Of  the   Evidence  in   Ejectment, 

when  brought  for  non-payment 

of  rent,  or  breach  of  covenant 
199 

In  what  cases  lessor  of  the  Plain- 
tiff is  not  called  upon  to  prove  Under  what 


LEASE. 

Covenant  for  quiet  enjoyment, 
Evidence  on  it  142 

Lease  with  a  covenant  not  to  as- 
sign, is  not  broken  by  a  sale  by 
the  Sheriff  144 

Leave  to  assign  by  writing  how  to 
be  proved  1 45 

Of  the  Evidence  in  Covenant,  for 
not  repairing  ibid. 

Of  the  Evidence  in  Covenant  for 
ploughing  up  meadow,  and  not 
using  the  land. in  a  husbandlike 
way  ibid. 


LETTER. 

Notice  of  the  dishonour  of  a  Bill 
.   by  Letter,  how  proved  30 

LIBEL. 
Evidence  in  Action  for    226,  228 


LIEN. 

circumstances  and  in 


INDEX. 


295 


what  cases  a  lien  is  allowed 

Page  252 
In  what  trades  and  businesses  a 

lien  is  allowed  ibid. 

Who  may  set  it  up  as  an  answer 

in  Trover  253 

LIGHTS. 

Evidence  in  Case  for  darkening 
lights  273 

LIMITATION. 

Statute  of  Limitations,  what  Evi- 
dence under  it  11 0 

May  be  given  in  Evidence  undei 
nil  debet  137 

LOAN. 

To  recover  money  lent,  the  Plain- 
tiff should  show  a  Loan  65 


M; 

MALICIOUS  PROSECU- 
TION. 

General  Rules  as  to  the  Evidence 
lequired  in  it  229 

Rules  where  it  has  been  by  Indict- 
ment 230 

Rules  where  it  has  been  by  Ar- 
rest ibid. 

Proceedings  all  at  an  end  how 
proved  232 

What  is  a  variance  233 

What  the  Defendant  may  give  in 
Evidence  under  the  general  is- 
sue 234 

MARRIAGE. 
Vide  BARON  and  FEME. 

Marriage  of  the  Plaintiff  and  his 
Wife  necessary  to  be  proved 
in  cases  of  adultery  1 67 

How  proved  168 


MARSHAL. 
Marshal  of  the  K.  B.  or  Warden 
of  the  Fleet  Evidence  in    an 
Action  for  an  escape  '        128 

MASTER  and  SERVANT. 

What  Actions  may  be  maintained 
against  a  Master  on  contracts 
made  by  his  Sorvant  103 

What  Evidence  in  such  case  is 
sufficient  to  charge  or  discharge 
the  master  104 

Of  the  Evidence  in  Case  by  the 
Master  for  seducing  away  and 
harbouring  his  servant  or  ap- 
prentice 283 

Evidence  in  Case  per  quod  servi- 
tium  amisit  284 

MISTAKE. 
Money  paid  by  mistake  recovera- 
ble in  Assumpsit ;  and  the-  Evi- 
dence required  62 

MOLLITER  MAWS 
IMJPOSUIT. 

What  Evidence  is  required  un- 
der that  Plea  155 

What  may  be  given  in  Evidence 
under  it  156 

MONEY* 

Evidence  in  Assumpsit  for  money 
had  and  received  60 

Same  where  it  is  money  paid    63 

Money  paid  voluntarily  cannot  be 
recovered  back  ibid. 

Evidence  under  the  Count  for 
money  paid  to  another's  use 
must  show  a  request  or  com- 
pulsion 64 

Evidence  under  the  Count  for 
money  lent,  what  is  necessary 

65 

Must  show  a  Loan  ibid. 

Promissory  note  is  good  Evidence 

ibid, 


296 


I  N  D  E  X; 


MORTGAGE. 

Of  the  Evidence  in  Ejectment  by 
Mortgagee  Page  203 


N. 

JV.fi  UMQUES  EXECUTOR. 
Evidence  under  that  Plea         1 34 


JV7Z  DEBET. 

Of  the  Evidence  under  nil  debet 


JVOJV  EST  FACTUM. 

Evidence  for  Plaintiff  in  Debt  on 

•  Bond  115 

How  Defendant  under  this  Plea 

may  give  in  Evidence  Rasure, 

Interlineation,  delivered  as  an 

Escrow,  &c.  129 

Evidence  when  pleaded  to  a  Bail 

Bond  ISO 

Evidence  under  it  in  Covenant 

147 

JVOJV  TFNUIT. 

When  under  this  Plea  Defendant 

must  prove  his  Title  174 

May  be  pleaded  in  Replevin  when 

Plaintiff  has  never  paid  rent 

ibid. 


NOTES. 

Promissory,  Rules  the  same  as  to 
Bills—  Vide  Bills  31 

A  promissory  note  is  good  Evi 
dence  under  the  count  for  mo- 
ney lent  65 


NOTICE. 

Notice  to  produce  papers  how  to 
be  given  15 

Copy  can  be  given  in  Evidence, 
when 

Notice  of  Action,  how  to  be  given 

.ibid. 


Notice  of  dishonour  of  a  Bill  of 
Exchange,  how  to  be  given,  and 
when  necessary  Page  29 

How  the  Defendant  is  to  avail 
himself  of  want  of  notice  of  bill 
being  dishonoured  ibid. 

Notice  of  Action  against  officers 
when  required,  and  how  given 
150 

How  proved  189 

Against  Justices  of  Peace,  what 
notice  of  Action,  and  how  prov- 
ed 16S 
137  Notice  to  quit  in  Ejectment,  how 
to  be  proved  197 

Form  of  Notice,  what  good    198 

What  is  Evidence  of  a  waiver  of 
a  notice  to  quit  205 


NUISANCE. 

What   Evidence  required  in  an 
Action  for  Nuisance  273 


O. 

OFFICE. 
Of  the  Evidence  in  an  Action  for 
disturbance  in  an  Office       280 


OFFICER. 

Officers  of  Excise  Customs  or 
Peace  Officers  when  and  how 
notice  of  Action  is  to  be  given, 
and  how  to  be  proved  1 50 

In  Actions  against  Officers,  how 
demand  of  perusal  and  copy  of 
their  warrant  is  to  be  proved 

151 

Their  appointment  157 

How  officers  of  the  Army  and 
Navy  are  to  justify  159 

How  an  officer  of  the  Sheriff  is  to 
justify  under  process  160 

f  the  Evidence  necessary  in  Ac- 
tion against  Officers  of  the  Ex- 
cise or  Customs  189 


16O 


I  XDF.  X. 


297 


OPPRESSION. 
Oppressive  bargain,  Evidence  un- 
der Non  Assumpsit    Page  105 

OWNER. 
See  SHIP. 


P. 

PARISH. 

In  Trespass,  Evidence  to  be  given 
of  it  181 

PARLIAMENT. 
If  a  party's  title  is  under  a  private 
Act  of  Parliament,  how  proved 

HI 

PARSON. 

What  Evidence  required  in  Ac- 
tions for  dilapidations  73 


What  Evidence  of  voluntary  pay- 
ment, and  not  recoverable 

Page  61 

Given  in  Evidence  under  Non. 
Assumpsit,  how  108 

PEACE. 

Breach  of  the  peace,  if  party  is 
imprisoned,  for  what  Evidence 
is  necessary  15& 

What  Evidence  is  required  for 
Constables,  Watchmen,  or  Of- 
ficers ibid. 

PENAL  STATUTE. 
Day  of  offence  committed,  must 
be  given  in  Evidence  1 5 

vidence  in  Actions  on  them  129 

PEW. 

Of  the  Evidence  necessary  in  Ac- 
tions for  disturbance  of  a  Pew 
276 


PARTNERS. 
What  Evidence   required  to 

persons  as  partners  86 

Partnership  how  proved        ibid 
How  proved  under  Pleas  in  abate- 
ment 88 


PATENT. 

Of  the  Evidence  in  case  for  in- 
fringing a  Patent,  what  proof  What 
required  278 

What    Evidence  the   Defendant 
may  give  279 


PAWNBROKERS.  See  SURETY. 

What  Evidence  is  required  in  Ac 

tions  against  them  267 

What  they  may  give  in  Evidence  Probate  of 

in  Trover  253 


PAYMENT. 

Payment  of  money  into  Court 

what  it  establishes,  and   how 

proved 


PLACE. 

fix  Laid  in  Declaration,  when  neces- 
sary to  be  proved  1 4 


PLENE  ADMINISTRAVIT. 
What  Evidence  may  be  given 
under  it  133 


POSSESSION. 

proof  required  of  it  in  Tro- 
ver 243 

PRINCIPAL. 


PROBATE, 
a  Will,  how  and  when 
required  to  be  given  in  Evi- 
dence 135 


PROPERTY. 
Of  the  Evidence  of  Property  in 
Trover  245 


298 


INDEX. 


Evidence  for  the  Defendant  in  the 
same  Action  Page  250 

PROTEST  OF  BILLS  OF 

EXCHANGE. 
When  necessary  to  be  proved  3 1 


PUBLICAN. 

Evidence  in  case  for  selling  of 

bad  wines  or  liquors  309 


R. 

RECEIPT. 

For  the  price  of  a  horse  may  be 
Evidence  of  the  agreement  and 
warranty  56 


RECOGNIZANCES. 

Evidences  in  debt  on  them 


142 


RECORD. 
Matters  of  Record,  how   to  be 

given  in  Evidence 
Evidence  in  Debt  on  matters  of 

Record  124 


RECOVERY. 
A  recovery  in  another    Action, 
how  proved  in  Trespass       1 92 


REGISTER 

Of  ships,  not  Evidence  of  owner- 
ship without  other  proof  82 

Register  of  ships  from  the  Cus- 
tom-house, how  far  it  is  Evi- 
dence 85 

RELEASE 

May  be  given  in  Evidence  under 
Non  Assumpsit  108 

Evidence  of  it  in  Covenant      148 
If  Trespass,  how  given  in  Evi- 
dence 192 


RENT. 


Evidence  in  debt  for  rent  in  gene- 
ral Page  \2l 

Evidence  in  debt  for  rent  against 
an  assignee  136 

Under  statute  1 1  Geo.  II.  c.  19. 
for  double  122 

Avowry  for,  what  Evidence  is 
necessary  73 — 75 

Where  a  demand  must  be  proved 

174 

Exact  amount  need  not  be  proved 

ibid. 

Of  the  Evidence  in  ejectment  for 
non-payment  of  rent  200 

REPAIR. 


Covenants  on  it,  Evidence  in   145 

172 


REPLEVIN. 
Evidence  in 


REPRESENTATION. 

1 6  False  representation  avoids  a  po- 
licy of  insurance  39 
What  shall  be  deemed  so         40 


RETAINER 

By  executor,  when  pleaded  how 
to  be  proved  132 

RETURN 

Of  the  Evidence  against  a  Sheriff 
for  a  false  return  262 

RIEWS  IJV  ARRERE. 

When  pleadable  in  replevin,  and 
how  proved  175 

RIOT. 

It  is  a  good  justification  for  taking 
a  person  into  custody,  that  he 
was  making  a  riot  158 


1  X  1)  K  X. 


299 


SAILOR. 

Evidence  in  Actions  for  then 
wages  Page  83 

SALES. 

The  Evidence  required  in  Actions 
on  sales.  See  goods  sold  5  5 

Evidence  of  sales  by  sample      57 

Evidence,  where  by  written  con- 
tract ibid. 

Where  by  a  broker  58 

Evidence  in  Trover  founded  on 
sales,  where  sold  by  a  Factor  or 
Plaintiff  himself  236 

Evidence  in  Actions  for  stolen 
goods  237 

Evidence  in  Trover  under  bills  of 
sale  238 

What  is  good  Evidence  to  rebut 
the  presumption  of  fraud  239 

Evidence  in  Actions  for  deceit  in 
sales  272 


In  debt  under  statute  29  Eliz.  c.  4. 
for  an  overlevy  Page  127^ 

[n  Trespass  dt  bonia  aafiortatia 
against  the  Sheriff,  what  must 
be  proved  1 88 

Evidence  in  Actions  against  the 
Sheriff,  respecting  the  property 
of  things  taken  in  execution 

189 

Of  the  Evidence  against  him  in 
Actions  on  the  Case  259 

For  him  26 1 

See  Rscafic — Execution— Palte 

Return —  Writ. 

SHIP. 


SEDUCTION. 
See  FATHER. 

SERVANT. 

Case  for  seducing.  See  Master. 

SERVICE. 

Of  notices, summonses,  Sec.  in 
course  of  a  Cause,  what  is  suffi- 
cient 15 


SER7ITIUM  jiMISIT. 

Case,/i£T  quod  servitium  amisit  in 
case  of  battery  of  child        281 
Of  Wife  28 

Of  Servant  284 


SET  OFF. 

Evidence  under  it,  what 


112 


SHERIFF. 

Of  the  Evidence  in  debt  against 

the  Sheriff  for  an  escape     1 26 


Insurance  on  ship,  how  the  Plain- 
tiff 's  interest  is  to  be  proved 

37 

The  sailing  of  the  ship  on  the 
voyage  insured,  how  to  be  prov- 
ed 38 

The  loss  to  be  proved,  as  stated 
in  the  declaration  ibid. 

Master  of  the  ship  not  a  good  wit- 
ness to  disprove  barratry  42 

Evidence  in  Actions  by  or  against 
Owners  of  ships  for  repairs  or 
wages  8 1 

Property  in  ships  how  to  be  prov- 
ed 82 
the  Sailor's  article,  how  far  they  are 
Evidence                               83 

Evidence  against  Owners  in  Ac- 
tions for  negligence  84 

Same  where  they  bring  Actions 
for  freight,  insurance  or  other 
charges  ibid. 


SOL7JT  AD  DIEM. 

How  proved  in  an  Action  of  debt 

131 

SON  ASSAULT. 
Evidence  under  that  Plea       154 


300 


INDEX. 


STAMPS. 

What  are  required,  how  to  be 
used  in  Evidence  Page  1 8 

Cases  of  inappropriate  stamps  on 
deeds,  with  many  parties  1 9 

Stamps  on  bills  or  notes  to  be  at- 
tended to  35 

"What  agreements  may  be  given 
in  Evidence  without  a  stamp 

48 

STATUTES    REFERRED 
TO. 

2  8c  3  Edw.  VI.  c.  13 
29Eliz.  c.  4.  127 
,21  Jac.  I.  c.  16.              193—195 
c.  19.                          240 

22  &  23  Car.  II.  c.  26.  188 
5  Ann.c.  14.                              128 
8  Ann.  c.  9.  191 
c.  14.                               314 

10  Ann.  c.  19.  191 

4  Geo.  II.  c.  4.  199 
2  Geo.  II.  c.  35.  83 

5  Geo.  II.  c.  30.  95 

11  Geo.  II.  c.  19.  184 
24  Geo.-IL  c.  57.  s.  9.  95 
34  Geo.  II.  c.  44.     152,161—163 
1 3  Geo.  III.  c.  80.  Game         1 66 

23  Geo.  III.  c.  70.  150.190 

24  Geo.  III.  sess.  2.  c.  47.       190 
43  Geo.  III.  c.  141.  In  cases  of 

convictions  1 65 

43  Geo.  III.  c.  145.  265 

48  Geo.  III.  c.  149.  48 

55  Geo.  III.  c.  44.  211 

SURETY. 

If  a  Surety  pays  money  on  ac- 
count of  his  Principal,  or  Co- 
Surety,  Evidence  in  Assumpsit 
to  recover  it  65.  70 

SURGEON. 

Of  the  Evidence  in  case  against  a 
surgeon  for  unskilfulness  257 


T. 

TENANT. 

If  distrained  on  my  head  landlord, 
and  he  pays  the  rent  recovera- 
ble under  the  count  for  money 
paid  to  his  landlord's  use 

Page  64, 
See  LANDLORD. 

TENDER. 
Evidence  under  the  Plea  of     111 
Of  rent  when  pleadable  in  bar  to 
avowry,  how  proved  1 75 

TITHES. 
Evidence  in  Actions  for  the  sub- 
traction of  them  73 

TOLL. 

Evidence  in  avowry  for  Toll, 
through,  or  traverse  177, 178 

Same  for  Tolls  of  Fairs,  Markets, 
or  Ports  178 

Evidence  in  Actions  for  disturb- 
ance of  rights  of  Tolls  275 

TRADE. 

Usage  of,  how  proved  77 

TRESPASS. 

Evidence  in  Trespass  for  break- 
ing Plaintiff's  close  1 80 

Same  where  for  taking  his  goods 

ibid. 

Evidence  in  Trespass  for  injury  to 
the  land,  what  to  be  proved, 
and  what  not  ibid. 

Evidence  where  abuttals  are  set 
out  1 8  i 

Of  the  Evidence  in  Trespass,  as  to 
the  parish,  time,  goods  taken 
and  new  assignment  182 

Evidence  in  Trespass  when  laid 
jointly  ibid. 

Of  the  Evidence  in  pleas  of  jus- 
tifi  cation  of  Trespass  1 83 

What  the  defendant  may  give  in 


INDEX. 


301 


Evidence  on  Trespass  under  the 
plea  of  not  guilty        Page  184 

Evidence  in  Trespass  as  it  arise 
out  of  a  distress  18' 

See  FISHERY,   GAME,    SHERIEF 
OFFICER  OF  EXCISE. 


TRESPASS  ON  TPIE  CASE. 
Of  the  general  Evidence  in  it  256 

TROVER. 

Evidence,  what  in  all  cases  neces 
sary  235 

See  SALES,  BANKRUPTS. 

Of  the  Evidence  for  the  Defend- 
ant generally  249 


U. 

USAGE. 

See  TRADE. 

USE  AND  OCCUPATION. 


WARRANT. 

184  Demand  of  perusal  and  copy  in 
Actions  against  officers,  how 
proved  Page  150,  162 

Where  the  charge  is  in  writing, 
and  a  warrant  granted  on  it,  the 
charge  should  be  produced  159 
How  a  justification,  under  a  war- 
rant, is  to  be  proved  161 
Warrant  of  committal  by  a  Jus- 
tice of  Peace,  when  and  how  to 
be  proved  166 
Warrants  to  officers  of  the  Ex- 
cise or  Customs,  how  proved 
191 

WARRANTY. 

False  warranty  avojds  a  policy  of 
insurance,  Evidence  as  to  it  what 

39 
See  HORSE. 


Evidence  in  Assumpsit  for  use  and 

.  occupation,  when  the  letting 
has  been  by  the  Plaintiff  to  the 
Defendant  43 

Evidence  when  the  Plaintiff  is  the 
heir,  executor,  administrator,  or 
devisee  of  the  first  lessee  44 

Evidence,  when  assignee  of  him 

45 

If  Defendant  has   paid    rent 
Plaintiff  he  cannot  dispute  his 
title,  how  proved  ibid. 

What  the  Defendant  may  give  in 
Evidence  in  answer  to  the  Ac- 
tion 46 

USURY, 

Shall  not  avoid  a  bill  or  note  in  the 
hand  of  a  bonajide  holder  33 

May  be  given  in  Evidence  under 
Non  dssumfisit  109 


W. 


WATCHMAN. 

See  CONSTABLE  and  PEACE. 

WATER. 

Of  the  Evidence  in  case  for  an  in- 
jury to  a  watercourse          276 

WAY. 

Of  the  Evidence  in  case  for  a  dis- 
turbance of  a  right  of  way    274 

WILL. 

to  Of  the  Evidence    in  Ejectment 
brought  under  Wills  209 

What  witnesses  must  prove    210 
What  Evidence  Defendant  may 
give  212 

What  to  show  that  the  will  is  void 

213 

Evidence  of  a  second  Will  set  up 
against  the  first  214 

Evidence   of  the  revocation  of  a 
Will,  by  what  means          ibid. 
Evidence  of  revocation  by  a  Fine, 
how  proved  ibid. 


502 


I  N  D  E  X. 


WITNESS. 
The  subscribing  witness  to  any 

instrument  offered  in  Evidence, 

must  be  called         .    Page  15 
Who  may   not   be   witnesses  in 

cases  of  bankruptcy  94 

Witness  to  a  bond  or  other  deec 

must  be  always  called  115 

Exceptions  to  that  rul.e  1 1 6 

When  to  be  called  to  prove  a  wil 

and  how  2 1 1 

WORK  and  LABOUR. 
What  Evidence  required  undei 

this  count  in  Assumpsit          68 
What  ot  the  Plaintiff's  trade  or 

business  ibid 

What  Evidence   the   Defendant 


may  give  in  answer  to  the 
Plaintiff's  case  Page  68 

WRIT. 

Of  the  Evidence  where  an  officer 
of  the  Sheriff  justifies  the  im- 
prisonment under  a  writ  or  pro- 
cess 1 60 

To  show  the  true  time  of  com- 
mencing an  Action,  the  Plain- 
tiff's attorney  should  always 
have  the  writ  in  court  1 62 

When  the  original  writ  is  suffi- 
cient Evidence,  and  what  when 
an  alias  or  pluries  is  offered  in 
Evidence  ibid. 

Of  the  Evidence  in  case  against 
the  Sheriff  for  executing  a  writ 
last  delivered  first  262 


